PLEASE READ THESE TERMS OF SERVICE (THE “TERMS OF SERVICE” OR THE “AGREEMENT”) CAREFULLY. THIS IS A BINDING AGREEMENT BETWEEN DigitalEx, Inc., d/b/a Mavvrik, INC., A DELAWARE CORPORATION WITH A REGISTERED ADDRESS OF 4602 CAT MOUNTAIN DR. AUSTIN TX 78731 (“Mavvrik”) AND THE COMPANY OR LEGAL ENTITY YOU REPRESENT (HEREINAFTER “CUSTOMER”). Mavvrik IS WILLNG TO GRANT CUSTOMER ACCESS TO AND USE OF Mavvrik SOFTWARE AND Mavvrik SERVICES ON THE CONDITION THAT CUSTOMER ACCEPTS ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON THE ACCEPTANCE BOX OR ACCESSING OR USING THE Mavvrik SOFTWARE OR Mavvrik SERVICES, CUSTOMER ACKNOWLEDGES AND AGREES THAT ALL SUCH ACCESS OR USE IS SUBJECT TO THIS AGREEMENT. ANY SUCH ACCESS OR USE WILL CONSTITUTE CUSTOMER’S ACCEPTANCE AND WILL RESULT IN A LEGALLY ENFORCEABLE AGREEMENT BETWEEN Mavvrik AND CUSTOMER. BY ENTERING INTO THIS AGREEMENT ON BEHALF OF CUSTOMER YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO ACCESS OR USE ANY Mavvrik SOFTWARE OR Mavvrik SERVICES. Mavvrik AND CUSTOMER MAY EACH ALSO BE REFERRED TO AS “PARTY” AND TOGETHER, THE “PARTIES.” NOTHING IN THIS AGREEMENT WILL BE DEEMED TO CONFER ANY THIRD-PARTY RIGHTS OR BENEFITS.
DEFINITIONS. As used in this Agreement, capitalized terms not otherwise defined herein have the meaning set forth below:
2.1. Subscription. Upon clicking the acceptance box or accessing or using Mavvrik Services or Mavvrik Software, Mavvrik grants a limited, revocable, non-exclusive, non-transferable and non-sublicensable license to access and use, for its own behalf and on behalf of its Subsidiaries, the Mavvrik Services and Mavvrik Software, subject to any restrictions contained in this Agreement. All rights not expressly granted under this Agreement are retained by Mavvrik. Mavvrik Services and Mavvrik Software are provided solely for Customer’s benefit and not, by implication or otherwise, to any parent, subsidiary that is not wholly-owned, or affiliate. Customer agrees not to pass through, license, resell, re-provision, or rent the Mavvrik Services or Mavvrik Software without Mavvrik’s express written consent.
2.2. Additional Services/Mavvrik Support Services. To the extent Customer requires Additional Services, the terms and conditions of such services will be provided in an addendum to this Agreement. Terms governing Mavvrik Support Services are set forth in Mavvrik’s Service Level Agreement which can be found at (Need SLA and a link
2.3. Third Party Software. Any Third Party Software (which, for clarity, does not include Open Source Software, for which Section 2.4 below applies) will remain the sole and exclusive property of such third parties. All uses of Third Party Software by Customer are subject to applicable license terms between Customer and such third parties providing the Third Party Software, and Mavvrik disclaims all representations or warranties as to such Third Party Software.
2.4. Open Source Software. Some Mavvrik Software may contain or be provided with Open Source Software. Customer hereby acknowledges that the terms of the third party licenses governing such Open Source Software, in addition to the terms and conditions of this Agreement, shall govern Customer’s use of such Open Source Software.
2.5. Restrictions. Except as expressly permitted in this Agreement, Customer shall not, and shall not permit a third party to: (i) decompile, disassemble, or otherwise reverse engineer Mavvrik Software provided as part of the Mavvrik Services or attempt to reconstruct, discover, or view any source code, underlying ideas, algorithms, file formats or programming interfaces of Mavvrik Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions); (ii) distribute, resell, rent, lease, use, or otherwise commercially exploit Mavvrik Software or Mavvrik Services (or any portion thereof) for time sharing, hosting, service provider, or like purposes, except as is necessary for Customer and its Subsidiaries to use such software and services for their applications as expressly licensed hereunder, as it may be amended; ((iii) access or use the Mavvrik Services or Mavvrik Software for the purpose of developing a services or product that competes with Mavvrik Services or Mavvrik Software; (iv) modify, translate or create derivative works of any part of the Mavvrik Software or Mavvrik Services; (v) attempt to circumvent or disable the security key mechanism that protects the Mavvrik Software or Mavvrik Services against unauthorized use (except and only to the extent that applicable law prohibits or restricts such restrictions); (vi) tamper with other customer accounts of Mavvrik; (vii) attempt to gain unauthorized access to the Mavvrik Services or Mavvrik Software or their related networks or systems; or (viii) subject to Section 11.5 of this Agreement, enter any data into the Mavvrik Services that is subject to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (i.e., the General Data Protection Regulation).
2.6. Modifications and Improvements. Customer acknowledges and agrees that Mavvrik is continually modifying and improving the Mavvrik Software and Mavvrik Services that is offered to Its customers and hereby agrees that all such modifications and improvements may be made by Mavvrik without its consent, provided that no such modification or improvement shall materially degrade the functionality of the Mavvrik Software and Mavvrik Services that has been specifically agreed to by Customer and Mavvrik on any Order Form without Customer’s written approval.
2.7. Mavvrik’s Right to Restrict Access. If Mavvrik reasonably suspects that use or access to Mavvrik Services or Mavvrik Software may be in breach of this Agreement, Mavvrik shall have the unilateral right to restrict or prohibit Customer’s access to Mavvrik Services and Mavvrik Software.
3.1. Payment of Fees. Customer agrees to pay the applicable Fees described on the Order Form, and in accordance with any terms therein. Unless otherwise agreed between the Parties, all Fees and other payment obligations are non-cancelable and non-refundable. All Fees shall be paid to Mavvrik within thirty (30) calendar days of the date of the invoice. In the event Customer receives Additional Services or Additional Data Protection Add-Ons, such services shall be provided at Mavvrik’s then-current standard time and material rates unless otherwise agreed in writing between the Parties. Mavvrik reserves the right to increase Fees for any renewal terms.
3.2. Late Payments; Suspension. Any late payment of Fees shall, at Mavvrik’s election, be subject to any costs of collection (including reasonable legal fees) and shall bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less. If any Fees are thirty (30) days or more past the due date for payment of such Fees under Section 3.1 of this Agreement, Mavvrik reserves the right to suspend Customer’s access to Mavvrik Services until such non-payment is remedied by Customer.
3.3. The license, service fees, and other amounts required to be paid hereunder do not include any amount for taxes. Customer shall be responsible for all applicable sales, use, VAT, excise, or other similar taxes arising from this Agreement. If Mavvrik is required by law to collect or remit such taxes, Customer shall reimburse Mavvrik for the amount collected or remitted. If Mavvrik is not required to collect sales tax in Customer’s jurisdiction, Customer acknowledges that they may have a use tax obligation and should consult with their tax advisor or applicable tax authority to determine their compliance requirements and remit any required tax directly. Mavvrik may begin collecting and remitting any such taxes at any time in accordance with applicable law. This provision does not apply to any taxes for which Customer is exempt, provided Customer has furnished Mavvrik with a valid tax exemption certificate.
3.4. Disputed Fees. If Customer wishes to dispute any Fees (each a “Dispute”) Customer must notify Mavvrik in writing of Customer’s good faith reason(s) for such Dispute within thirty (30) days. In the event of a Dispute, Customer must still pay the amount of the Fees that are not disputed.
4.1. Support Services: Generally. Mavvrik shall use commercially reasonable efforts to provide Mavvrik Support Services. Mavvrik will make available to Customer Mavvrik Support Services via email. Email support will be available during normal business hours on Central Time Zone, unless otherwise agreed in writing. Additional terms governing Mavvrik Support Services are set forth in Mavvrik’s Service Level Agreement which is made part of this Agreement and is attached hereto.
4.2. Exclusions. Mavvrik shall not be obligated to provide Mavvrik Support Services for any Customer applications, Third Party Software or any software or applications that Customer owns or uses on its computer systems and networks other than Mavvrik Software or other software provided as part of the Mavvrik Services delivered to Customer pursuant to this Agreement (collectively the “Unsupported Code”). Mavvrik makes no guarantees regarding the service availability of Unsupported Code and shall not be liable for any failures or delays in such service availability.
5.1. Reservation of Rights. By executing the Agreement, Customer irrevocably acknowledges that Customer has no ownership interest in Mavvrik Software or the Mavvrik Services (including any modifications or improvements thereto), Mavvrik’s intellectual property rights or any other materials Mavvrik provides to Customer. Except as otherwise expressly set forth in this section, Mavvrik shall own all right, title, and interest in all Mavvrik Software, Mavvrik Services, and all Mavvrik materials, subject to any limitations associated with intellectual property rights of third parties. Mavvrik reserves all rights not specifically granted herein. Intellectual property shall include, but not be limited to, all intellectual property rights wherever in the world, whether registerable or unregisterable, registered or unregistered, including any application or right of application for such rights. These “intellectual property rights” include but are not limited to, patents, patent applications and provisional patent filings, copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing-off rights, unfair competition rights, utility models, and rights in designs). This section shall survive termination or non-renewal of this Agreement.
5.2. Aggregate Data. As between the Parties, Mavvrik owns and shall continue to own all right, title and interest in and to all Aggregate Data, and Mavvrik may use such Aggregate Data (including providing such Aggregate Date to third parties) for the purpose of: (i) supporting Customer’s use of the Mavvrik Software and Mavvrik Services; (ii) maintaining and improving the Mavvrik Software and Mavvrik Services; and (iii) developing new features and functions for the Mavvrik Software and Mavvrik Services. This right shall survive termination or non-renewal of this Agreement.
5.3. Suggestions/Improvements to Software and Services. Unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Customer regarding Mavvrik Software, Mavvrik Services, or other Mavvrik materials provided to Customer shall be owned by Mavvrik, and Customer hereby assigns any such rights, including all intellectual property rights thereto, to Mavvrik. Nothing in this Agreement shall preclude Mavvrik from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Mavvrik in the performance of services hereunder.
6.1. Confidentiality of Mavvrik Software and Mavvrik Services; Trade Secrets. Confidential Information of Mavvrik includes: (i) Mavvrik Software, any Mavvrik-developed materials furnished by Mavvrik; (ii) the oral and visual information relating to the Mavvrik Software; (iii) any information or materials provided by Mavvrik to Customer and related to this Agreement, and (iv) this Agreement (including all terms and conditions) and any documentation generated or created as a result of the same. Customer acknowledges that certain of the Confidential Information of Mavvrik in this Section may constitute trade secrets of Mavvrik under applicable law (the “Trade Secrets”). Confidential Information of Customer shall consist of any and all Data.
6.2. Exceptions. Without granting any right or license, Confidential Information shall not include, and the obligations of the Parties under this Section 6 shall not apply to any material or information that: (i) is or becomes a part of the public domain through no act or omission by the Party receiving Confidential Information (“Receiving Party”) and through no breach of confidentiality owed to the Party disclosing Confidential Information (“Disclosing Party”); (ii) is independently developed by the Receiving Party without use of the Confidential Information provided by the Disclosing Party; (iii) is rightfully obtained from a third party without breach of any obligation of confidentiality owed to the Disclosing Party; or (iv) is already known by the Receiving Party without breach of any obligation of confidentiality owed to the Disclosing Party prior to obtaining the Confidential Information from the Disclosing Party. In addition, neither Party shall be liable for disclosure of Confidential Information if made in response to a valid order of a court with competent jurisdiction or authorized agency of government, provided that notice is promptly given to the Disclosing Party so that it may seek a protective order and engage in other efforts to minimize the required disclosure. The Parties shall cooperate fully in seeking such protective order and in engaging in such other efforts to protect and maintain the confidentiality of the information in question.
6.3. Ownership of Confidential Information. Nothing in this Agreement shall be construed to convey any right, title or ownership interests to or in (i) Confidential Information, or (ii) any patent, copyright, trademark, or trade secret embodied therein. The Receiving Party shall not, in whole or in part, sell, lease, license, assign, transfer, impair, or disclose the Confidential Information of the Disclosing Party to any third party and shall not copy, reproduce, make available for viewing by a third party, or distribute the Confidential Information except as expressly permitted in this Agreement. Each Party shall take every reasonable precaution, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, viewing, reproduction or distribution of the Confidential Information, and in no circumstances shall the Parties use less than commercially reasonable efforts to assure the same.
6.4. Non-Disclosure. Each Party agrees at all times to keep strictly confidential all Confidential Information belonging to the other Party. Each Party agrees to restrict access to the other Party’s Confidential Information only to those employees or direct subcontractors who (i) require access in the course of their assigned duties and responsibilities; and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Agreement.
6.5. Injunctive Relief. Each Party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the Party disclosing such Confidential Information imminent irreparable injury and that the Disclosing Party shall be entitled to, in addition to any other remedies available at law or in equity, seek temporary, preliminary, and permanent injunctive relief (without the posting of any bond and without proof of actual damages) as a remedy for any such actual, or threatened or potential, breach of this Agreement and, in particular, any confidentiality provision herein.
6.6. Survival. The terms of this Section 6. Confidentiality, shall survive the termination or non-renewal of this Agreement.
7.1. Customer Warranties. Customer represents and warrants that (i) it has the power, right and full corporate authority to enter into this Agreement and perform its obligations under this Agreement; (ii) this Agreement is a binding obligation upon it and is enforceable in accordance with its terms; (iii) it will comply with all applicable rules, laws and regulations in the course of performing its obligations and duties and exercising its rights under this Agreement; (iv) any information or materials supplied by Customer to Mavvrik will not misappropriate, infringe or otherwise violate any rights of third parties; and (v) it will prevent unauthorized access to Mavvrik Software and Mavvrik Services.
7.2. Mavvrik Warranties. Mavvrik represents and warrants to Customer that: (i) the Mavvrik Services and Mavvrik Software shall substantially conform to the specifications and documentation provided by Mavvrik in writing to Customer (provided that such Mavvrik Services and Mavvrik Software are not modified by Customer or a third party); and (ii) Mavvrik will perform the Additional Services obligations hereunder using qualified personnel in a professional, workmanlike and diligent manner consistent with industry standard. Customer’s sole and exclusive remedy for breach of the foregoing warranties in this Section is to request that Mavvrik correct any defect or event giving rise to the breach, provided that Customer must notify Mavvrik of such defect or event giving rise to the breach within thirty (30) days of becoming aware of the defect. Upon receipt of such notice, Mavvrik shall use commercially reasonable efforts to cure any material defect within forty five (45) days of receipt of the notice or within ninety (90) days for any non-material defect. If Mavvrik is unable to cure the defect within the applicable cure period, Customer shall have the right to terminate this Agreement.
7.3. Disclaimer of Warranties. EXCEPT FOR THE WARRANTIES IN SECTION 7 OF THIS AGREEMENT, Mavvrik EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, STATUTORY OR IMPLIED REGARDING THE Mavvrik SOFTWARE (INCLUDING THIRD PARTY SOFTWARE) AND Mavvrik SERVICES (AND ANY RESULTS TO BE OBTAINED FROM THE USE THEREOF), INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, ACCURACY, TIMELINESS, COMPLETENESS, AND ORIGINALITY, NONINFRINGEMENT AND ALL WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING AND USAGE OF TRADE OR THEIR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION, AND THE Mavvrik SOFTWARE. Mavvrik SERVICES ARE PROVIDED “AS IS”. Mavvrik DOES NOT WARRANT THAT THE Mavvrik SOFTWARE OR Mavvrik SERVICES SHALL BE UNINTERRUPTED, FREE FROM ERROR, OR THAT THE Mavvrik SOFTWARE OR Mavvrik SERVICES SHALL MEET THE NEEDS OF THE CUSTOMER OR RESOLVE ANY PROBLEMS ENCOUNTERED BY CUSTOMER. Mavvrik SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. Mavvrik IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY LOSS OF DATA OR DAMAGES RESULTING THEREFROM. NO ORAL OR WRITTEN ADVICE GIVEN BY Mavvrik OR ITS REPRESENTATIVES WILL CREATE ANY WARRANTY OF ANY KIND.
7.4. No Modifications. Notwithstanding anything to the contrary in this Section, any and all warranties under this Agreement are VOID if Customer has made changes to the Mavvrik Software or Mavvrik Services or has permitted any changes to be made other than by or with the express, written approval of Mavvrik.
8.1. Liability Cap. EXCEPT FOR: (i) LIABILITY ARISING OUT OF CUSTOMER’S MISAPPROPRIATION OR MISUSE OF Mavvrik SOFTWARE OR Mavvrik SERVICES, ANY INTELLECTUAL PROPERTY RIGHTS OWNED BY Mavvrik THEREIN, OR ANY OTHER INTELLECTUAL PROPERTY RIGHTS OWNED BY Mavvrik; (ii) LIABILITY ARISING FROM ANY BREACH OF THE CONFIDENTIALITY OBLIGATION SET FORTH IN SECTION 6 OF THIS AGREEMENT BY THE ACTS OF EITHER PARTY OR THEIR RESPECTIVE EMPLOYEES OR DIRECT CONTRACTORS; OR (iii) LIABILITY ARISING FROM INDEMNIFICATION OBLIGATIONS IN SECTION 12 OF THIS AGREEMENT (COLLECTIVELY “EXCLUDED LIABILITY”), IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), INDEMNIFICATION OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID TO Mavvrik BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE ACT GIVING RISING TO LIABILITY OF SUCH PARTY UNDER THIS AGREEMENT, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
8.2.. Disclaimer of Damages. EXCEPT FOR EXCLUDED LIABILITY, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION OR LOSS OF PROFITS, DATA, BUSINESS OPPORTUNITIES, OR GOODWILL EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
9.1. Term. This Agreement shall remain in effect until terminated in accordance with the provisions of this Agreement as described on the applicable Order Form (the “Term”). Pricing and other similar material terms may change as agreed in writing between the Parties.
9.2. Termination/Suspension/Modification by Mavvrik. Mavvrik reserves the right, from time to time, to replace or remove access to Mavvrik Services and Mavvrik Software, to alter or update the terms of this Agreement, and to otherwise make changes in how Mavvrik provides Mavvrik Services and Mavvrik Software. In addition, Mavvrik may modify, suspend or discontinue some or all of the Mavvrik Services and Mavvrik Software, with respect to all customers, at any time without notice. Customer acknowledges and agrees that Mavvrik may do so in Mavvrik’s sole and exclusive discretion at any time and without notice. Notwithstanding anything to the contrary, in the event that Mavvrik terminates this Agreement other than due to a breach of this Agreement by Customer, Customer’s sole and exclusive remedy shall be to receive a refund of prorated and unused fees, if any, for the prepaid unused term of the Agreement.
9.3. Termination by Customer. This Agreement may be terminated by Customer in the event that the Mavvrik Services and/or Mavvrik Software are not available to Customer on the terms provided for in the Order Form, provided that Customer must first notify Mavvrik in writing and provide Mavvrik an opportunity to rectify the situation. In the event that Mavvrik is unable to provide the Mavvrik Services and/or Mavvrik Software to Customer on the terms specified in the Order Form, after a period of thirty days following the notice from Customer, Customer may then terminate the Agreement upon thirty days prior written notice in order for the parties to coordinate such termination. If this Agreement is terminated by Customer, access to Mavvrik Services will automatically terminate at the end of the notice period provided by Customer. Under no circumstances shall Mavvrik be obligated to provide Customer with any Mavvrik Services after the termination of this Agreement, whether pursuant to this Agreement or any separate Service-related agreement. In the event that Customer terminates this Agreement as provided herein, Customer’s sole and exclusive remedy shall be to receive a refund of prorated and unused fees, if any, for the prepaid unused term of the Agreement.
9.4. Effect of Termination. Except as otherwise explicitly provided herein, upon termination or expiration of this Agreement, Customer shall no longer access the Mavvrik Software or Mavvrik Services, and Customer shall not circumvent any security mechanisms contained therein. Notwithstanding anything herein above to the contrary in this Section 9, Mavvrik shall have no obligation to provide any Mavvrik Services or other support after the termination or non-renewal of this Agreement, all such actions to be solely in the discretion of Mavvrik.
9.5. Other Remedies. Termination of this Agreement shall not limit either Party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all Fees and other payment obligations that have accrued or are otherwise owed by Customer under this Agreement.
10.1. Ancillary Agreements. Customer agrees that no employees of Mavvrik shall be required to individually sign any agreement in order to perform any services hereunder including, but not limited to, access agreements, security agreements, facilities agreements or individual confidentiality agreements.
10.2. Right to Customer Information and Data. Customer represents and warrants that (i) it has full right, title and interest in and to the information and data that Mavvrik will have access to, store, transmit and protect pursuant to this Agreement (“Data”), (ii) the Data does not infringe upon, misappropriate or otherwise violate any third party’s intellectual property, privacy or other rights, (iii) Customer has the legal right to disclose all Data that it does in fact disclose to Mavvrik under, pursuant to or in connection with this Agreement, and (iv) the Data and its use and processing by Mavvrik does not violate any applicable law, including international and domestic data protection or data privacy laws. Customer agrees that it shall indemnify and hold harmless Mavvrik and its employees, principals, interest holders and representatives for any claims, causes of action, lawsuits, agency or administrative proceedings brought against or involving Mavvrik as a result of an actual or claimed breach of this provision. Notwithstanding anything to the contrary in this Agreement, Mavvrik may use Customer’s Data (including providing such Data to third parties) for the purpose of improving its products and services provided that such use is in accordance with Section 5.2 and Section 6 of this Agreement, and Customer’s Data is anonymized in a manner that the Customer cannot be identified.
11.1. Data Security Policy. Mavvrik will implement, maintain, and adhere to a written information security program that incorporates administrative, technical, and physical safeguards (including provisions for reasonable disaster recovery and vulnerability testing) designed to ensure the security, confidentiality, and integrity of Customer’s Confidential Information stored using the Mavvrik Services or stored by Mavvrik on any of its systems or networks which is collected or comes into Mavvrik’s possession as a result of performing Additional Services hereunder. Mavvrik makes no guarantees, representations or warranties regarding the security of Third Party Software. While Mavvrik does not make any guarantees, representations or warranties regarding the security of Open Source Software, Mavvrik takes commercially reasonable measures to monitor Open Source Software used by the Mavvrik Software using a commercially available tool. Mavvrik will release patches and updates to Mavvrik Software within a reasonable period of time after the identification by Customer or after identification by Mavvrik of any Open Source Software requiring modification.
11.2. Audits. To the extent Mavvrik has undergone any audit (e.g., SAS 70, SSAE-18, SOC 2), whether performed by or on behalf of Mavvrik, that assesses the effectiveness of Mavvrik’s written information security program as relevant to the Software, Mavvrik may provide Customer with the results of any such audit upon Customer’s request and in Mavvrik’s sole discretion. Mavvrik has no obligation to provide to Customer any audit results to which Mavvrik has access regarding Third Party Software incorporated into Mavvrik Software, unless the applicable third party authorizes Mavvrik to provide such audit results to Customer. In the event that Customer hosts any of Mavvrik’s Software in its hosting environment, Customer will provide any audit reports (e.g., SAS 70, SSAE-18, SOC 2), whether performed by or on behalf of Customer, that assesses the effectiveness of Customer’s information security program as relevant to the Mavvrik Software. Customer shall provide Mavvrik with the results of any such audit upon Mavvrik’s request.
11.3. Collection and Use of Personal Information. Customer acknowledges that, during and in connection with Customer’s use of the Mavvrik Software or Mavvrik Services, Mavvrik may collect Personal Information of Customer and its authorized users. Mavvrik may use such Personal Information as necessary to provide the Mavvrik Software and Mavvrik Services to Customer, or any products or services Customer requests from Mavvrik hereunder. Customer agrees that Mavvrik may share such Personal Information with third parties: (i) when Mavvrik has Customer’s permission or consent to share such Personal Information; (ii) as necessary to provide the Mavvrik Software or Mavvrik Services to Customer, or any products or services Customer requests from Mavvrik hereunder; (iii) in connection with information that Customer or its authorized users request that Mavvrik share; (iv) if it is necessary to share such Personal Information in order to investigate, prevent or take action regarding a violation of law, a violation of this Agreement, or technical problems and malfunctions in computer systems and networks that support the Mavvrik Software or Mavvrik Services; or (v) in response to a request under applicable law or court order.
For any Personal Information obtained from individuals in the European Union or United Kingdom, the following additional provisions shall apply: (a) in connection with such processing of such Personal Information, Mavvrik shall implement, maintain, and adhere to a written information security program that incorporates administrative, physical and technical safeguards and security procedures to protect the Personal Information to which Mavvrik may have access that are no less rigorous than generally accepted industry practices; (b) Mavvrik shall only process data provided by Customer or its authorized users, including Personal Information, in a manner as instructed by Customer or as otherwise expressly authorized by this Agreement—such instructions may include implementation of recommendations from a supervising authority or other technical or administrative matters related to the security of such processing; (c) data provided by Customer or its authorized users, including Personal Information, shall not be repurposed or shared across other applications, environments, or business units of Mavvrik or its service providers not providing Mavvrik Software or Mavvrik Services to Customer pursuant to this Agreement; (d) Mavvrik shall obtain Customer’s prior written consent before providing such Personal Information to a third party for processing and such third party shall be obligated to comply with this Section 11.3 and other provisions of this Agreement applicable to such processing; and (e) Customer may perform (or have performed) an audit and inspection of Mavvrik’s records and facilities related to the Mavvrik Software to confirm Mavvrik’s compliance with this Agreement with respect to the processing of any such Personal Information, provided that any such audit will be conducted in a manner so as not to interfere with Mavvrik’s business and shall not be requested more than once per year unless the additional request is due to Customer’s good faith belief that such Personal Information has been used or disclosed without authorization.
11.4. Analytics. Mavvrik may use analytics services and other tools to enable Mavvrik to monitor and analyze web traffic and monitor user behavior. Mavvrik may use the results from such services or tools to improve the Mavvrik Software or Mavvrik Services.
11.5. GDPR Data. To the extent Mavvrik’s provision of Mavvrik Software to Customer is subject to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (i.e., the General Data Protection Regulation), then the Parties will cooperate in good faith to promptly execute a Data Processing Addendum in a form mutually agreed between the Parties.
11.6. Notification of Breach. In the event that Mavvrik becomes aware of an inadvertent or unauthorized disclosure of Customer Confidential Information in violation of the terms of this Agreement, including but not limited to Customer Data, Mavvrik agrees that it will notify Customer in writing of such unauthorized disclosure as soon as possible but in no event more than 72 hours after discovery of such unauthorized disclosure.
12.1. Indemnity by Mavvrik. Mavvrik shall indemnify, defend and hold harmless Customer and its Subsidiaries, officers, directors, agents, representatives and employees (collectively, the “Customer Indemnitees”) from any third party claims or causes of action, penalties, costs, expenses or damages (“Losses”), arising out of, or relating to (i) any third party claim that the Mavvrik Software, when used in accordance with this Agreement, violates, infringes or misappropriates any valid and issued intellectual property rights of any third party; or (ii) any act of gross negligence or willful misconduct by Mavvrik. Notwithstanding the foregoing, Mavvrik shall have no duty to indemnify, defend or hold harmless Customer Indemnitees for Losses to the extent resulting from: (a) Customer use of the Mavvrik Software or Mavvrik Services in violation of the terms of this Agreement or any written documentation or instructions provided by Mavvrik to Customer governing the Mavvrik Software or Mavvrik Services; (b) Customer combining the Mavvrik Software with any items, including software, hardware, information, or other technology, that are not provided to Customer by Mavvrik; (c) modification or alteration of the Mavvrik Software by Customer or any third party without Mavvrik’s express written authorization and direct supervision; (d) failure of Customer to use updated or modified Mavvrik Software provided by Mavvrik; (e) compliance by Mavvrik with designs, plans or specifications furnished by or on behalf of Customer; (f) use of the Customer’s Data as authorized herein; or (g) any gross negligence or willful misconduct of Customer. In the event that the Mavvrik Software becomes, or in Mavvrik’s reasonable opinion is likely to become, the subject of any such claim, Mavvrik may, in its sole discretion, (1) procure for the Customer the right to continue using the Mavvrik Software, (2) modify the relevant portions of the Mavvrik Services or Mavvrik Software in any manner deemed advisable by Mavvrik so as to make them non-infringing, or (3) if the preceding options are not, in Mavvrik’s reasonable opinion, feasible, then Mavvrik may terminate this Agreement in whole or in part, provided that Mavvrik refund Customer for any prepaid Fees associated with the allegedly infringing Mavvrik Services or Mavvrik Software. The indemnification obligations set forth in this Section 12.1 are Mavvrik’s sole and exclusive obligations and Customer’s sole and exclusive remedies with respect to the infringement or misappropriation of third party intellectual property rights.
12.2. Indemnity by Customer. Customer shall indemnify, defend and hold harmless Mavvrik and its officers, directors, agents, representatives and employees from any Losses arising out of, or relating to, (i) any claim that any data, software or materials provided by Customer to Mavvrik violate, infringe or misappropriate any intellectual property rights of any third party; (ii) any claim that the Mavvrik Software, as a result of Mavvrik’s compliance with Customer’s designs, specifications or instructions, violates, infringes or misappropriates any intellectual property rights of any third party, (iii) any act of gross negligence or willful misconduct by Customer, or (iv) any network intrusion into Customer’s hosted network that compromises, accesses or exposes Mavvrik’s Confidential Information (including source code of the Mavvrik Software).
12.3. Conditions for Indemnification. Each Party’s indemnification obligations shall be conditioned on the following: (i) the indemnified Party shall provide prompt written notice of any claim to the indemnifying Party, provided that any failure to provide such prompt written notice will only relieve the indemnifying Party of its obligations to the extent its ability to defend such claim is materially prejudiced by such failure; (ii) the indemnifying Party shall not consent to entry of any judgment or admission of any liability of the indemnified Party without the prior written approval of the indemnified Party; and (iii) the indemnified Party shall cooperate in the defense of any claim as reasonably required by the indemnifying Party at the indemnifying Party’s sole expense. It is acknowledged and agreed that nothing contained herein (a) shall be considered a waiver by either Party of any remedy or right, in law or equity, all of which are expressly reserved without prejudice; and (b) prevents the indemnified Party from obtaining separate counsel at such Party’s sole expense.
13.1. Compliance With Laws. Customer and Mavvrik each agree to comply with all applicable laws, regulations, and ordinances relating to its performance under this Agreement including but not limited to those related to data privacy and export compliance. The Parties agree that the Agreement shall not be governed by the United Nations Convention on the International Sale of Goods or by UCITA, the application of which is expressly excluded.
13.2. Assignment. Neither Mavvrik nor Customer may assign this Agreement or otherwise transfer any license created hereunder without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign or transfer this Agreement to its successor as part of a corporate reorganization, consolidation, merger or sale of substantially all assets of such Party, provided the assignee assumes all obligations in this Agreement. Subject to the foregoing restrictions, this Agreement shall inure to the benefit of the Parties and their respective successors and permitted assigns. Any assignment or transfer in violation of this Section shall be null and void and the non-assigning Party shall have the right, in its sole discretion, to terminate this Agreement in the event this provision is breached.
13.3. Survival. The provisions set forth in Sections 1, 3, 5, 6, 7.3, 8, 9.3, 9.4, 9.5, 10.2, 10.4, 11, 12, and 13 of this Agreement shall survive termination or expiration of this Agreement and any applicable license hereunder.
13.4. Notices. Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery to the party to whom addressed. All notices shall be sent to the applicable address specified on the face page hereof or to such other address as the parties may designate in writing. Unless otherwise specified, all notices to Mavvrik shall be sent to the attention of the CEO and its General Counsel. Any notice of material breach shall clearly define the breach including the specific contractual obligation that has allegedly been breached and the date on which alleging Party became aware of the alleged breach.
13.5. Force Majeure; Events Outside of a Party’s Control. Neither Party shall be liable to the other Party for any delay or failure to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of the failing or delaying Party. Such causes shall include, but are not limited to, acts of God, acts of war, floods, fires, explosions, loss of electricity or other utilities, civil unrest, terrorist attacks, riots or protests, viruses, fault of the internet or any public telecommunications network, or, in the case of Mavvrik, fault or failure of the Customer’s computer systems or networks, fault or failure of a third party infrastructure used to deliver the Service, or delays by Customer in providing required resources or support or performing any other requirements hereunder.
13.6. Restricted Rights. Use of the Software by or for the United States Government (the “U.S. Government”) is conditioned upon the U.S. Government agreeing that the Mavvrik Software is subject to Restricted Rights as provided under the provisions set forth in FAR 52.227-19. Customer shall (a) advise Mavvrik if Data involves or will be shared with any governmental entity, (b) be responsible for assuring that this provision is included in all agreements with the U.S. Government and (c) make sure that the Mavvrik Software, when delivered to the U.S. Government, is correctly marked as required by applicable U.S. Government regulations governing such Restricted Rights as of such delivery.
13.7. Entire Agreement. These Terms of Service, together with the Order Form, constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals, presentations, negotiations and prior discussions and writings between the parties with respect thereto. Any signed copy of this Agreement made by reliable means (e.g., photocopy or facsimile) shall be considered an original.
13.8. Order of Precedence. In the event of an express conflict between the terms and conditions of these Terms of Service and a specific legal agreement (Including but not limited to a fully executed Order Form), the terms and conditions of the specific legal agreement shall prevail.
13.9. Modifications. Customer acknowledges and agrees that these Terms of Service may be modified, altered and updated by Mavvrik from time to time, in its sole discretion, by uploading the new Terms of Service on the Mavvrik website. Notwithstanding the above, however, the Parties agree that the financial and other specific terms applicable to Customer’s license, as agreed upon in any Order Form, cannot be altered, amended or modified, except by a writing signed by an authorized representative of each Party.
13.10. Publicity. Customer hereby grants Mavvrik permission to use its trade names, trademarks and logos in Mavvrik’s marketing materials and authorizes Mavvrik to identify Customer as a customer publicly, including, but not limited to, Mavvrik’s issuance of a press release and social media campaign, provided that Mavvrik will not issue a press release without Customer’s prior consent, such consent not to be unreasonably withheld.
13.11. No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
13.12. Severability and Reformation. Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement is determined by a court of competent jurisdiction to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
13.13. Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or intent of any such section nor in any way affect the Agreement.
13.14. Acceptance/Authority. Customer has indicated its acceptance of these Terms of Service by clicking the acceptance box before logging into the Mavvrik platform for the first time or by accessing or using any of the Mavvrik Services or Mavvrik Software. By clicking the acceptance box or accessing or using the Mavvrik Services and/or Mavvrik Software, the individual clicking the acceptance box or using the Mavvrik Services or Mavvrik Software represents and warrants that he/she is duly authorized on behalf of Customer to bind the Customer to this Agreement.
13.15. Exclusions. applicable warranty and indemnification provisions do not apply to innovation cycle products as delineated below:
13.16. Choice of Law. THIS AGREEMENT SHALL BE GOVERNED AND INTERPRETED BY THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS OF ANY STATE OR JURISDICTION. ANY ACTION ARISING OUT OF, OR RELATED TO, THIS AGREEMENT SHALL BE BROUGHT IN THE STATE OR FEDERAL COURTS LOCATED IN AUSTIN, TEXAS AND EACH PARTY HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS.
This Agreement was last modified in 31-MAR-2025.
