This Master Service Agreement (the “Agreement”) is between Nerivon Corporation (“Nerivon Corporation” or “we”) and your company or organization (“Customer” or “you”) effective as of the date of your signature on an Nerivon Corporation order for services or your consent to an order form made available by email or on our website at nerivon.com (each, an “Order”). You represent to us that you have the authority to bind your company or organization to this Agreement.
Service We provide the Nerivon Corporation services (each, a “Service”) described in your Order which is incorporated into this Agreement by this reference. You agree to provide assistance and cooperation and meet any Customer obligations listed in your Order. You retain us to exclusively provide the Service during the Term (as defined below and on the Order). This Agreement also incorporates by reference any “Additional Terms” included by Nerivon Corporation in your Order. If there is a conflict between your Order and this Agreement, your Order will control.
Fees; Payment Terms You will pay Nerivon Corporation a monthly service fee for the Service as set forth in your Order (the “Service Fee”). You will also pay any one-time fees or costs set forth in your Order (“One-Time Fees” and together with the Service Fee, “Fees”). The Service Fees are due monthly in advance unless your Order specifies that they are to be paid in arrears, which may be the case for certain Services. One-Time Fees are due in advance of your use of the Service. Recurring service fees are due on the day of the month on which you begin your Term and the same day of each subsequent month during the Term (the “Due Date”). We may increase our Fees at any time and such increased fees will apply during the next month of the Term. Fees are non-refundable. You are responsible for use in excess of the monthly bandwidth allotment stated in your Order. Bandwidth overages are invoiced in the month following the overage.
Payment. When you register for the Service, you will provide us with either a valid, up-to-date credit card number or the other payment information we request. If you select credit card as your payment method, you authorize us to charge your card for Fees on the first Due Date and each subsequent Due Date and for any additional Fees beyond your Service Fee, including any late fees or interest charges. You are responsible for maintaining up-to-date payment information on the Service. Our obligation to provide Services is contingent on verification that you satisfy our credit approval criteria at all times.
Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes (”Taxes”). You are responsible for paying all Taxes associated with your purchases. Nerivon Corporation is only responsible for taxes assessable against it based on income, property, and employees.
Late Payments. If we cannot charge your credit card for any Fees when due because your payment information is no longer valid and up-to-date, or if we do not receive your payment when due, we may, at our election: (a) suspend your access to the Services, in which case you will be responsible for all Fees incurred during the period of suspension; or (b) immediately terminate this Agreement, in which case your right to use the Service will cease. Payments not timely received will be charged a $5 late fee and will incur interest charges at the rate of 1% per month on any outstanding balance or the maximum rate allowable by law. You agree to pay our collection costs if we hire a collection agency or attorney to collect late payments. Suspension may be applied automatically when your account is in default. We do not send postal mail late notices or call you prior to suspension so remember to check to ensure that your account is always current.
Use of Service, Restrictions, Customer Obligations
Permitted Use. Some Services are for internal use only for designated employees and contractors of your organization (“Internal Users”). Other Services, such as cloud hosting may involve you providing access to Services through Customer Technology (as defined in Section 4.2) to your authorized third-party customers (“External Users” and together with Internal Users, “Users”). You are responsible for the acts and omissions of all Users.
Support Services. You must designate a single Internal User to manage support from Nerivon Corporation for your Services. We do not provide support directly to other Internal Users or to any External Users.
Prohibited Use. You specifically agree not to: (a) “frame,” distribute, resell, or permit access (except for Users) to the Services by any third party; (b) permit multiple end users to access the Services using shared login credentials (i.e., a shared email address and password); (c) use the Services other than in accordance with the instructions or documentation we provide and in compliance with applicable federal, state, and local laws; (d) interfere with the Services or disrupt any other user’s access to the Services; (e) reverse engineer, attempt to gain unauthorized access to the Service, or attempt to discover the underlying source code or structure of the Services; (f) submit to the Services any content or data that is false, misleading, defamatory, threatening, offensive, or infringing of intellectual property rights, or that contains mass mailings or any form of “spam”; (g) submit to the Services any disabling code, malicious code, virus or other malware; (h) engage in data scraping or data extraction outside of the ordinary features of the Services; (i) register for or use our Services to monitor or test the availability or performance of the Services, or for other benchmarking or competitive purposes; or (j) use our Services in violation of our Acceptable Use Policy available at https://nerivon.com/legal/acceptable-use-policy.
API’s and Software. We may, from time to time, make available application programming interfaces (APIs), HTML scripts, data import tools, or other software code or executables as part of the Service (the “User Software”). We grant you a non-exclusive, non-transferable, revocable license during the Term solely to use the User Software to access and use the Service in compliance with the terms of this Agreement. Except as expressly permitted herein, you agree not to distribute or disclose the User Software to any third party. The User Software is deemed a part of the Service for purposes of this Agreement.
Responsibility for Accounts. All Orders must include your real name, street address, phone number and e-mail address. Providing false information may result in immediate termination of your account without refund. Each set of login credentials (i.e., email address and password) for the Service may be used only by a single, individual User. You are responsible for all use of the Service that occurs under your user accounts, and you agree to notify us of any unauthorized access of which you become aware.
Regulated Use. You may not use our Services for the storage, processing or transmission of protected health information (“PHI”) as defined by the Health Insurance Portability and Accountability Act (“HIPAA”) without notifying us in advance, receiving our permission and executing our form of Business Associates Agreement. Our staff does not and will not be given logical access to PHI. You are responsible for meeting all regulatory requirements for HIPAA compliance. If you are operating from within the European Economic Area (“EEA”) and are subject to the General Data Protection Regulation (“GDPR”), you acknowledge that you are a “controller” under the GDPR and we are a “processor”. We will enter into our form of Data Processing Agreement with model contractual clauses for the transfer of personal data from the US to the EEA.
Our IP. To provide the Service and access to related reporting reflecting the results of the Service, we use proprietary software, know-how and information that embody methods, algorithms, inventions, information, logos, and other elements that we use to provide our Service and that are protected (or qualify for protection) under US patent, trademark, copyright or trade secret law (the “Nerivon Corporation IP”). Nerivon Corporation and its licensors own the Nerivon Corporation IP, and all related intellectual property rights and all content in the Service other than Customer Data.
Customer Technology. “Customer Technology” means hardware, software, applications or other information technology components that you provide and host or store using the Services. Customer and its licensors own the Customer Technology and all related intellectual property rights other than the Nerivon Corporation IP.
Customer Data. When you enter information, files, or images (“Customer Data”) into Projects, you grant us a non-exclusive, royalty free, worldwide license to use Customer Data to make the Services and their features available in accordance with any online documentation we provide on our website, including by displaying or providing access to Customer Data to Users and making it available for download and modification by such authorized Users. You are responsible for backing up all Customer Data.
Feedback. We are grateful for any input you provide, but we need to maintain our intellectual property rights in the Services. Accordingly, you agree that all feedback and suggestions for enhancement that you provide to us concerning the Service (“Feedback”) will be owned by us without any obligation of compensation to you.
Exclusive Remedy; Limited Warranties During the Term, Nerivon Corporation will use reasonable efforts to provide the Service in a good and workmanlike manner. We will correct any purported breach of this Agreement by us within thirty (30) days after receiving written notice from Customer concerning such breach. This will be your sole and exclusive remedy for any purported breach by Nerivon Corporation with respect to the Service. THIS SERVICE REMEDY IS EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER WRITTEN, ORAL OR IMPLIED, REGARDING THE SERVICE, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES IMPLIED FROM A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH NERIVON CORPORATION DISCLAIMS. WE DO NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTION.
Term Unless otherwise specified in an Order, the term of this Agreement will begin on the first Due Date and continue for one calendar month to the next Due Date (the “Term”) and will automatically renew for subsequent one month terms (each a “Term”).
Termination We may terminate this agreement and your Service for any reason. You may terminate this agreement and your Service by submitting a cancellation request in your customer support panel under the active service you want to cancel. Cancellation requests must be submitted before the next Due Date for each service you wish to cancel.
Effect of Termination If this Agreement terminates, all invoices and fees owed to Nerivon Corporation by Customer will become immediately due and payable. All data will be erased promptly after termination. Be sure to download any Customer Data you need prior to termination.
Indemnity Nerivon Corporation will defend, indemnify and hold harmless Customer and its directors, officers, employees and agents from and against any and all third-party claims, demands, lawsuits, judgments, losses, or expenses (including reasonable attorneys’ fees and court costs) to the extent arising out of any claim that the User Software infringes a copyright of any third party. Nerivon Corporation will have the right to control the defense of any third-party claim for which Customer seeks indemnity and defense under this paragraph. This indemnity, defense, and hold harmless obligations will not apply to modifications made by you or use in violation of Section 3.3. Customer will defend, indemnify and hold harmless Nerivon Corporation, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, demands, lawsuits, judgments, losses, or expenses of any nature whatsoever (including attorneys’ fees) arising directly or indirectly from or out of, or any way relating to (i) Customer’s use of the Software or any Service, except a claim covered by the first sentence of this Section 9; (ii) Customer Data including any infringement, defamation or other third party claim involving Customer Data; and (iii) any claim against Nerivon Corporation by customers or users of Customer Technology or any other technology you make available using our Services.
Confidentiality Each party agrees not to disclose, duplicate, publish, release, transfer or otherwise make available to third parties, except Users, the other party’s Confidential Information without the other party’s prior written consent. “Confidential Information” means any financial, technical, or business information that a party designates as confidential at the time it is disclosed to the other party, or that a party reasonably should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. The specific features of the Service, the documentation we provide to you in connection with the Service, and the User Software are our Confidential Information. Your Confidential Information includes Customer Data. Confidential Information does not include any information that: (i) is or becomes generally known to the public without breach of a party’s confidentiality obligation under this Agreement; (ii) was independently developed by a party without breach of a party’s confidentiality obligation under this Agreement; or (iii) is received from a third party who obtained such Confidential Information without breach of any obligation owed to the other party. When this Agreement terminates, we will use commercially reasonable efforts to remove Customer Data from the Service’s active environment.
Limitation of Liability Under no circumstances will Nerivon Corporation be liable for any consequential, indirect, special, punitive, exemplary or incidental damages of any kind, whether foreseeable or unforeseeable (including but not limited to, claims for lost revenue, lost profits, loss of data, loss of goodwill, loss of use of money or use of services, interruption in the use or availability of data, restoration of backups, data reconstruction, (regardless of the stoppage of other work or impairment of other assets), arising out of the purported breach or failure of any express or implied warranty, breach of contract, negligence, strict liability in tort or otherwise. In no event will Nerivon Corporation’s liability under this Agreement exceed the Service Fees received by Nerivon Corporation from Customer during the month preceding the applicable claim. These limitations of liability and damages apply regardless of the Service you use. It is your responsibility to maintain adequate off-site backups of data and you acknowledge that a hardware or software RAID is not a backup.
Publicity We may list your name and logo in our promotional materials and on our website and you grant a license to use your name and logo for such purposes. You may provide written notice requesting we not identify you as a customer on our website or in our customer list, blogs, and other public communications. Additionally, you agree at no time will you publish any negative or derogatory comments about Nerivon Corporation or our Service.
General The parties agree that Ontario, Canada law, without reference to rules governing conflict of laws, will apply to this Agreement and any dispute between the parties related thereto. The parties agree to exclusive jurisdiction and venue in the federal and provincial courts of Ontario for any dispute arising under this Agreement. Neither Party will be responsible for any failure to perform its obligations under this Agreement (other than obligations to pay money) if such failure is caused by events beyond the reasonable control of either party such as flood, fire, theft, epidemic or pandemic (including COVID19), communications failure, etc. We are an independent contractor under this Agreement. Our failure to enforce strict performance or compliance with any provision of this Agreement will not constitute a waiver of our rights to subsequently enforce such provision or other provisions of this Agreement. If a court of competent jurisdiction finds any provision of this Agreement to be illegal or unenforceable, that provision will be eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. This Agreement contains the entire understanding of the parties regarding its subject matter and supersedes all prior agreements between the parties, both oral and written. This Agreement will not be amended except by mutual written consent of both parties. You may not assign this Agreement by operation of law or otherwise without our prior written consent.
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