Master Subscription Agreement - Marpipe
The Master Subscription Agreement (“Agreement” or “MSA”) entered into on the date as set forth on the Order Form between Customer and Marpipe, Inc. located at 291 Broadway, Ste 700 New York, NY 10007 (“Marpipe”). This Agreement includes all terms set forth herein and any terms in a fully-executed Order Form (defined below) and/or other Amendments (defined below) that incorporate this Agreement (collectively “Exhibits”).
By executing the Order Form, Customer (as identified by the Order Form) agrees to be bound by the Order Form and this Agreement on the Effective Date. The Order Form is incorporated into this Agreement. All terms that are not defined within the Order Form shall have the meanings as defined in this Agreement. If there is a conflict between the Order Form and this Agreement, the Order Form shall control.
1. Definitions
1.1 “Marpipe Software” means collectively the cloud based Marpipe software accessed at Marpipe.com (or an associated website) along with any other software/modules, associated documentation, data, code, and services or other materials made available to Customer by Marpipe as generally described on the Marpipe website. The Marpipe Software does not include the Third-Party Services (defined below) The Marpipe Software includes the Support and Implementation Services described in this Agreement, but does not include any additional Services such as customized coding or enhancements.
1.2 “Amendment” means an amendment form to change or modify a Subscription or to order additional Services. Marpipe has no obligation to offer an Amendment unless agreed upon.
1.3 "Customer Data" means any and all Customer data, code, software, content, notes, information, or other materials inputted, interfacing, or used within the Marpipe Software, including Inputs and Outputs.
1.4 “Documentation” means the content and materials describing the Marpipe Software and any associated features or services that are made available to Customer via Marpipe’s website or any attached documents, which may be updated from time to time.
1.5 “Implementation” means the implementation or onboarding services as described in the Order Form or other order form.
1.6 "Intellectual Property Rights" means any patent, patent application, copyright, moral right, trade name, trademark, trade secret, and any applications or right to apply for registration therefor, computer software programs or applications, tangible or intangible proprietary information, or any other intellectual property right, whether registered or unregistered that are owned by a Party.
1.7 “Third-Party Services” means any third party software, hardware, or equipment (including the AI Services”) that is either integrated within the Marpipe Software or may be required to be separately purchased by Customer (at Marpipe’s direction), the Third-Party Services is wholly owned by third parties not associated with Marpipe.
1.8 “Party” and/or “Parties” mean Marpipe or Customer in the singular, and Marpipe and Customer in the plural.
1.9 “Service(s)” means any additional services (excluding Support and/or Implementation) subject to an Amendment or services ordering document.
1.10 “Order Form” means the Order Form which sets forth Customer’s subscription details to the Marpipe Software and any Services ordered.
1.11 “Support” means the support services described in Section 11 of this Agreement.
1.12 “AI Services” means generative artificial intelligence models or platforms, including third party large language models.
2. Marpipe Software Subscription
2.1 Marpipe Software Subscription. Marpipe provides the Marpipe Software as a subscription (a “Subscription”). Subject to the terms and conditions of this Agreement and the Order Form and upon timely payment of any Subscription Fees (defined below), Marpipe shall make available the Marpipe Software. Where any portions of the Marpipe Software are downloaded, Marpipe grants Customer a worldwide, non-exclusive, non-transferable, non-sub-licensable, terminable, limited license to use the Marpipe Software for the duration of the Subscription. Where any Marpipe Software is accessed via cloud services or web browser, Marpipe shall allow Customer to access the Marpipe Software in accordance with this Agreement. During Customer’s Subscription, Marpipe may make updates, changes, modifications, alterations or removals to the Marpipe Software and may update the functionality, user interface, usability, Documentation associated, other materials, training and educational information of, and relating to the Marpipe Software from time to time in its sole discretion and in accordance with this Agreement. Nothing in this Agreement obligates Marpipe to offer any previously offered functionality within any updated version of the Marpipe Software.
2.2 Customer shall order the Subscription by executing an Order Form. Each Order Form executed is subject to this Agreement. Services may be offered by Marpipe and such Services shall be set forth within the Order Form. Where Customer wishes to change or modify a Subscription or to order additional Services Marpipe may issue an Amendment, Marpipe has no obligation to offer an Amendment and Marpipe reserves the right to modify any pricing for any Amendment requested. All Amendments may be executed by written consent via Customer email. Any dates provided within an Amendment or Order Form are merely good faith estimates and not a guarantee.
2.3 Usage. Subscriptions for the Marpipe Software are subject to usage limits, including, for example, the units and quantities specified in the Order Forms and technical and functional requirements set forth within the Documentation. If Customer exceeds any usage limit, Customer agrees to execute a new Order Form, Amendment, or pay any additional invoice for such excess usage at Marpipe’s current rates.
2.4 Third-Party Services. The Marpipe Software does not include, and Marpipe does not warrant, software or hardware obtained from any source other than Marpipe including any Third-Party Services or any software, code, data, hardware, or other materials provided by Customer. Customer understands and agrees that any issues with the transmission, processing, or storage of any Customer Data by any Third-Party Services or hardware are solely to be resolved by and between Customer and the owner of the Third-Party Services.
2.5 Additional Purchase Required. In order to properly use portions of the Marpipe Software, Customer may be required to purchase a subscription to Third-Party Services or equipment. The use of the Third-Party Services is subject to any agreements, terms, conditions, or licenses that are solely entered in by and between Customer and such third party. Marpipe is not a party to any agreements entered into between Customer and any Third-Party Services provider. Prior to purchasing a Subscription, Customer is required to purchase at its own expense, a license or access to the Third-Party Services, in accordance with Marpipe’s instructions and to provide Marpipe access to the Third-Party Services. Where any Third-Party Services equipment is required, Marpipe has no obligation to provide such equipment, makes no representations or warranties related to such equipment.
2.6 Customer Requirements. Customer shall be exclusively responsible for supervision, management and control of its use of the Marpipe Software, including without limitation; (a) assuring proper machine configurations, audit controls and operating methods; (b) creating, modifying, entering or reentering Customer Data; (c) monitoring and maintaining proper access controls and security for its authorized users; (d) ensuring that all authorized users abide by this Agreement, any Order Form, or other guidelines or instructions issued by Marpipe; (e) complying with all reasonable instructions from Marpipe regarding the Marpipe Software; (f) and (g) restricting access to any third parties that are not authorized to access the Marpipe Software under this Agreement. Customer agrees to and shall ensure that all authorized users shall agree to the Marpipe Terms of Service located at: https://www.marpipe.com/terms-conditions
2.7 Subscription Change. Where Customer wishes to change the scope of its Subscription the Parties may execute a new Order Form or Amendment as required by Marpipe. The new Order Form or Amendment must be executed and agreed upon by both Parties to become effective. Where a new Order Form is executed, Marpipe shall have no obligation to offer any Subscription to the Marpipe Software at any pricing previously offered to Customer.
2.8 Services. If applicable, Services shall be set forth in an Amendment or Order Form. Marpipe agrees to perform the Services in a timely and professional manner consistent with industry standards for similar services and in accordance with the specifications of the Amendment or Order Form. In the event of Marpipe’s failure to comply with the obligations in this section, Marpipe shall correct or reperform the non-conforming Service or refund any fees paid for the non-conforming Services at Marpipe’s election and such performance or refund shall be Customer’s exclusive remedy. Each Amendment shall be deemed to be part of the Agreement upon full execution of the same.
2.9 Pricing. The pricing for all paid Subscriptions is stated within the Order Form or Amendment. Marpipe may increase the price of any paid Subscription, at our discretion upon expiration of an Order Form or Amendment. In the event of a price increase, Marpipe shall notify Customer and Customer shall have the opportunity to accept or reject any price increase before the paid Subscription renewal. Where Customer rejects a price increase, upon the expiration of Customer’s paid Subscription the Marpipe Software may become immediately unavailable. Customer agrees that Marpipe has no obligation to offer any Subscriptions for the price originally offered to Customer at sign-up.
2.10 AI Services. Marpipe may make available certain AI Services on the Platform, which may generate certain content (such as suggested images and copy for designs and advertising messaging (collectively, the “Output”)) in response to your prompts or queries (“Input”). Marpipe does not make any representations with respect to the AI Services or any Output provided in connection therewith. Such AI Services are not under the control of Marpipe. Marpipe is not responsible for any AI Services or Output generated thereby and Customer uses such AI Services and Output at its own risk.
3. Payment and Pricing
3.1. Fees. Customer will pay to Marpipe all fees and expenses (the “Fees”) as specified in any Order Form. Any Fees shall be invoiced or charged (to Customer’s payment method on file) to Customer from time to time, where the due date is not otherwise specified in the Order Form, all Fees are due within five (5) days from the date of invoice issuance. All Fees are non-refundable. Unless otherwise specified, all Fees are in U.S. dollars. Customer shall pay the Fees to Marpipe in a method agreed upon between the Parties or as set forth within the Order Form. Failure by Customer to pay any Fees may result in the immediate termination or suspension of its access to the Marpipe Software.
3.2 Auto-Bill. Where Customer’s Subscription has been set up for automatic billing, Customer agrees that Marpipe may charge the Customer’s payment method on file automatically and on a recurring basis for the period of the Term (defined below) as set forth within this Agreement. Auto-billing shall continue until such feature is removed by Customer with the consent of Marpipe.
3.3 Taxes. Customer is responsible for any duties, customs fees, or taxes (other than Marpipe’s income tax) associated with the purchase of the Marpipe Software provided by Marpipe, (including any related penalties or interest) (“Taxes”), and shall pay the listed Fees without deduction for Taxes. If Customer is required by local law to withhold any amount from any payments specified in an Order Form, then Customer will pay Marpipe the listed Fees as if no withholding were required, and shall remit the withholding to the appropriate governmental authorities on behalf of Marpipe, with a copy of the tax receipt or certificate forwarded to Marpipe.
3.4 Prior to any term renewal as set forth within an Order Form, Marpipe may provide Customer written notice that the Fees paid for the Marpipe Software may increase prior to the commencement of the new term. Where Marpipe provides such a notice of a fee increase, Customer may provide thirty (30) days written notice to terminate this Agreement prior to the commencement of the new term. Where Customer does not provide written notice of termination such Fee increase shall be deemed accepted by Customer at the commencement of the new term.
3.5 Delinquencies. Any late payments by Customer will accrue late charges at the rate of 5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower (such charges, “Interest Charges”). Customer shall pay to Marpipe any Interest Charges as invoiced by Marpipe. Where Customer fails to timely pay any invoices, Marpipe may at its discretion suspend its provision of Marpipe Software to Customer until such invoice is paid. In addition, Customer will be responsible for any costs resulting from collections of any undisputed, overdue balance, including, without limitation, reasonable attorneys’ fees and court costs.
4. Restrictions and Suspension
4.1 Where applicable, all rights in the Marpipe Software not expressly granted under this Agreement are reserved to Marpipe or its licensors. Without limiting the foregoing, Customer shall not, and shall not permit others under its control to (1) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract the source code of the Marpipe Software or any component thereof; (2) assign, sublicense, transfer, lease, rent or otherwise distribute or make available the Marpipe Software to any third party; (3) use the Marpipe Software for High Risk Activities or otherwise contrary to the instructions of Marpipe; or (4) use the Marpipe Software to create, deliver training on, improve (directly or indirectly) or offer a substantially similar product or service. “High Risk Activities” means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Marpipe Software could lead to death, personal injury, or environmental damage.
4.2 Marpipe may suspend Customer’s access to, or use of, the Marpipe Software, if in Marpipe’s discretion it believes that (1) there is a threat to the functionality, security, integrity, or availability of the Marpipe Software or any related content, code, or data (2) Customer is accessing or using the Marpipe Software to commit an illegal act; or (3) there is a violation of any Agreements between the Parties . When reasonably practicable and lawfully permitted, Marpipe will provide Customer with advance notice of any such suspension. Marpipe will use reasonable efforts to re-establish the Marpipe Software promptly after Marpipe determines that the issue causing the suspension has been resolved. Any suspension under this section shall not excuse Customer from Customer’s obligation to make payments under this Agreement.
5. Proprietary Rights and Customer Data
5.1. Marpipe’s Proprietary Rights. Marpipe retains all right, title and interest in and to all the Marpipe Software along with all general techniques, methods, processes, routines, tools, concepts, inventions, patterns, algorithms, techniques and know-how developed previous to or during the term of this Agreement. Further, Customer acknowledges that the structure, organization, and code of the Marpipe Software and all related enhancements and software components thereof are proprietary to Marpipe and/or Marpipe's licensors and that Marpipe and/or its licensors retains exclusive ownership of the Marpipe Software, enhancements, trademarks, and any and all other Intellectual Property Rights relating to the Marpipe Software, including all modifications, derivatives, and other software and materials developed hereunder by Marpipe, and all copies thereof. Customer shall not remove any proprietary, copyright, trademark, or service mark legend from any portion of any of the Marpipe Software, including any modifications, enhancements, derivatives, and other software and materials developed by Marpipe. Customer agrees to make all necessary and reasonable efforts to comply with the above provisions in a manner which Customer takes to secure and protect its own intellectual property.
5.2. Trademarks. “Marpipe”, “Marpipe.com”, and any other trademarks and service marks adopted by Marpipe to identify the Marpipe Software and other Marpipe products and services belong solely to Marpipe. Customer has no rights in such marks except as specified in writing between the Parties. Customer may not publicly display the Marpipe logo, its marks without express written consent from Marpipe.
5.3. Feedback. If Customer provides Marpipe any suggestions or feedback regarding the Marpipe Software (“Customer Feedback”), then Marpipe may use the Customer Feedback without obligation to Customer, and Customer hereby irrevocably assigns to Marpipe all right, title, and interest in that Customer Feedback.
5.4 Customer Data. Customer owns all Customer Data provided to Marpipe. Title to Customer Data and any copy thereof remains with Customer. Notwithstanding Customer's ownership of its Customer Data, Customer grants to Marpipe a limited, royalty free, fully revocable license to the Customer Data for the purposes of providing the Marpipe Software and all Services contemplated under this Agreement and may use the Customer Data for troubleshooting, product improvement (including underlying technology), model training, diagnostics/analysis, and benchmarking. Customer represents, warrants, and covenants: (1) it owns all title, right, and interest in the Customer Data or has properly licensed such Customer Data and obtained all clearances and paid all monies necessary to exercise the license granted herein; (2) the Customer Data is not currently involved in any litigation with any third parties and does not violate any third party agreements; (3) the Customer Data does not and will not infringe on any copyright, moral right, trademark or other intellectual property right and will not violate any right of privacy or right of publicity of a third party; (4) all individuals and entities connected with the production of the Customer Data, and all of the individuals and entities whose names, voices, photographs, likenesses, appearance, works, services and other materials appear or have been used in the Customer Data, have authorized and approved Customer’s use thereof; and (5) that all Customer Data is compliant with all laws and regulations of Customer and Marpipe’s jurisdictions. During Customer’s use of the Marpipe Software, Customer shall not upload any Customer Data that is in violation of any US state or federal laws. Marpipe uses industry standard security and backup routines but is not responsible for lost or destroyed Customer Data, which loss or destruction shall be at Customer's sole risk.
6. Term & Termination
6.1. Agreement Term. This Agreement will begin on the Effective Date and continue as set forth within the Order Form and renew as stated. The initial term may be specified on the Order Form, which includes both the POC and Subscription Term (as defined by the Order Form) as applicable, where no initial term is stated within the Order Form the initial term shall be a one (1) year term from the Effective Date (the “Initial Term”). Unless stated otherwise within an Order Form, after the expiration of the Initial Term, this Agreement shall automatically renew for the same periods as the initial Subscription Term as stated within the Order Form unless terminated by either Party in accordance with this Agreement (the renewal term and any Initial Term shall be referred to collectively or separately as the “Term(s)”). All renewal terms shall renew automatically unless otherwise specified within an Order Form.
6.2 Termination. Except as otherwise specified within the Order Form, either Party may terminate a Subscription by providing written notice to the other thirty (30) days prior to the renewal of any Term. Where a breach of this Agreement occurs due to Customer, Marpipe may immediately terminate this Agreement by providing written notice. Customer may terminate the Agreement if Marpipe breaches any material term of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice of such breach by Customer. Email is sufficient for written notice of termination in accordance with this section.
6.3 POC/Trials. Customer may be offered a trial, which may be referred to as “Proof of Concept”, or “POC”, within the Order Form. All POC trial terms are offered at the sole discretion of Marpipe and Marpipe has no obligation to offer a POC term or trial period. Customer must terminate the trial prior to the expiration of the POC term by notifying Marpipe in writing at accounting@marpipe.com. Failure to timely terminate any POC may result in charges to Customer for the agreed upon Subscription.
6.4. Effect of Termination. If the Agreement expires or is terminated, then: (1) the rights granted by one Party to the other will immediately cease except where such right is required to perform an obligation set forth in this Agreement; (2) all Fees pre-paid to Marpipe shall not be refunded and Fees accrued until termination and owed by Customer are immediately due upon receipt of a final invoice from Marpipe; and (3) upon request, each Party will use commercially reasonable efforts to return or destroy all Confidential Information of the other Party and certify that it has done so in writing. Customer may request that Marpipe assist Customer with migrating any Customer Data and Marpipe may assist at its discretion and subject to any data migration fees.
7. Confidentiality
7.1. Confidentiality Obligation. During the term of this Agreement, both Parties agree that (1) Confidential Information will be used only in accordance with the terms and conditions of the Agreement; (2) each will use the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care; and (3) the Confidential Information may be disclosed only to employees, agents, vendors and contractors with a need to know, and to its auditors and legal counsel, in each case, who are under a written obligation to keep such information confidential using standards of confidentiality not less restrictive than those required by this Agreement. Marpipe may use Customer’s Data for the purposes set forth in this Agreement, including providing Support, and improving, testing and providing the Marpipe Software. “Confidential Information” means any information designated as confidential orally or in writing by either Party, or any information that the receiving Party knows, or has reason to know, is confidential or proprietary based upon its treatment by the disclosing Party.
Customer acknowledges that: (a) Marpipe may share or receive Customer Data through integration with Third-Party Services so that it may be used in accordance with the terms of this Agreement, and (b) when it integrates a Third-Party Service with, or elects to use a Third-Party Service on, the Marpipe Software, it is instructing Marpipe to share and receive such Customer Data with the providers of such Third-Party Services for this purpose. To the extent that Marpipe shares Customer Data with AI Services, it shall ensure that its agreement with the provider of such AI Services shall not use the Customer Data for any training purposes.
7.2. Exclusions. This Agreement imposes no obligation with respect to information which: (1) is a part of or enters into the public domain; (2) was already in the recipient’s possession prior to the date of disclosure other than by breach of this Agreement; (3) is rightfully received from a third party without any duty of confidentiality; (4) is independently developed without reference to the Confidential Information of the disclosing Party.
8. Warranties
8.1 Marpipe Software Warranty. Marpipe represents and warrants that the Marpipe Software will generally conform in accordance with any Documentation provided.
8.2 Authority. Each Party warrants that it has full power and authority to enter into this Agreement.
8.3 No Lawsuits. Each Party represents and warrants that entering into this Agreement shall not violate a third party right or interest or that there is any pending lawsuit or litigation that would preclude it from entering into this Agreement.
8.4 Customer acknowledges that any Customer Data or reports generated, obtained or acquired through the use of the Marpipe Software is used at Customer's sole risk and discretion. As Customer inputs all Customer Data, Marpipe is not liable or responsible for any results generated through the use of the Marpipe Software.
8.5 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, NEITHER MARPIPE NOR ITS AFFILIATES PROVIDES ANY OTHER REPRESENTATIONS OR WARRANTIES REGARDING THE MARPIPE SOFTWARE, AND TO THE FULLEST EXTENT PERMITTED BY LAW DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, TERMS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES, TERMS AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MARPIPE OR ELSEWHERE WILL CREATE ANY WARRANTY, TERM OR CONDITION UNLESS EXPRESSLY STATED IN THIS AGREEMENT.
WITH RESPECT TO AI SERVICES, MARPIPE DOES NOT REPRESENT OR WARRANT THAT CUSTOMER IS THE LEGAL OWNER OF ANY OUTPUT, OR THAT THE OUTPUT IS PROTECTABLE BY ANY INTELLECTUAL PROPERTY RIGHTS, OR THAT THE OUTPUT DOES NOT INCORPORATE, INFRINGE OR MISAPPROPRIATE THE INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY. CUSTOMER ACKNOWLEDGES THAT IT SHALL BE SOLELY RESPONSIBLE FOR ITS USE OF THE AI SERVIES AND ANY OUTPUT RESULTING THEREFROM. CUSTOMER IS RESPONSIBLE FOR REVIEWING ANY OUTPUT GENERATED THROUGH AI SERVICES PRIOR TO ITS USE AND EXERCISING ITS OWN BUSINESS AND LEGAL JUDGEMENT AS TO ITS SUITABILITY FOR USE.
9. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MARPIPE OR ITS AFFILIATES BE LIABLE FOR DAMAGES OTHER THAN DIRECT DAMAGES, INCLUDING THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY, LOSS OF PROFITS, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES ON ANY THEORY OF LIABILITY, WHETHER IN STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL LIABILITY OF MARPIPE TO CUSTOMER UNDER THIS AGREEMENT EXCEED THE LESSER OF THE TOTAL AMOUNTS PAID BY CUSTOMER TO MARPIPE DURING THE SIX (6) MONTHS PRIOR TO THE DATE THE CLAIM ARISES, OR TWENTY THOUSAND US DOLLARS ($20,000). THE LIABILITY LIMITATIONS IN THIS PARAGRAPH (AND OTHERWISE IN THE AGREEMENT) DO NOT LIMIT OR EXCLUDE DAMAGES FOR BODILY INJURY OR DEATH OR OTHER DAMAGES THAT UNDER APPLICABLE LAW CANNOT BE LIMITED OR EXCLUDED.
10. Indemnity
10.1. Indemnity. Indemnity by Marpipe. Marpipe shall defend or settle at its sole expense any claim brought against Customer, its directors, officers, or employees by a third party alleging that the Marpipe Software infringes or misappropriates any patent, copyright, or trade secret of a third party, and Marpipe shall pay all damages finally awarded or costs of settlement of the claim provided that Customer: (1) provides Marpipe prompt written notice of any claim; (2) gives Marpipe sole control of the defense and settlement of the claim; and (3) provides all reasonable assistance in connection with the claim. If Customer’s rights to use the Marpipe Software are, or in Marpipe’s opinion could be, enjoined due to an indemnified claim, then Marpipe may, at its sole discretion and expense: (a) procure for Customer the right to continue using the Marpipe Software according to the terms of this Agreement, (b) modify the Marpipe Software such that it operates with materially equivalent functionality without infringing or misappropriation, or (c) if neither of the foregoing options is commercially reasonable, terminate the Subscription and refund any Fees paid for the Subscription prior to any indemnification claim in this Section.
10.2 Exclusions. The indemnity provided by Marpipe under this Agreement does not extend to claims arising from or relating to (1) use of the Third-Party Services, Outputs or any software provided by Customer; (2) modifications to the Marpipe Software not provided by or approved in writing by Marpipe; (3) use of the Marpipe Software in combination with any data, software, or hardware not provided by Marpipe to the extent the alleged infringement would not have occurred without the combination; (4) use of the Marpipe Software that is outside the scope of permissible use as defined by Marpipe; or (5) allegedly infringing activities that continue after Marpipe has informed Customer in writing of and made available to Customer at no additional charge a version of the Marpipe Software that would have avoided the alleged infringement.
10.3. Remedy. This section states Customer’s sole and exclusive remedy with respect to claims of infringement of third party proprietary rights of any kind and is subject to the terms of the section titled “Limitation of Liability.”
10.4. Additional Indemnity. Customer will indemnify and hold Marpipe, its directors, managers, officers, members, employees and agents, harmless from and against all liabilities, losses, costs, damages and expenses, (including reasonable attorneys' fees and court costs), relating to or arising from: (1) the unpermitted use of the Marpipe by Customer or its authorized users; (2) any information or results obtained through use of the Marpipe Software; and (3) any breach of this Agreement by Customer and/or its authorized users.
11. Availability and Support
11.1 Availability. The Marpipe Software shall be generally available and accessible; however, as the availability of the Marpipe Software is contingent on the availability of the Third-Party Services, Marpipe cannot make any guarantees regarding any up-time or availability. From time to time the Marpipe Software may be unavailable due to regular maintenance, repair, or system updates generally where practicable Marpipe shall notify Customer of such unavailability.11.2 Support. Support services related to the Subscription shall be set forth in the Marpipe Order Form.
12. Miscellaneous
12.1. Publicity. Customer may state publicly that it is a user of the Marpipe Software, and Marpipe may identify Customer as a user of the Marpipe Software and use Customer’s logo and tradename for such identification and marketing purposes, provided that any such statements shall conform with the trademark usage guidelines provided by one Party to the other.
12.2. Assignment. The Agreement may not be assigned by either Party by operation of law or otherwise, without the prior written consent of the other Party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Exhibits), without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or the sale of all or substantially all of the assets of the business to which the Agreement relates.
12.3. Conflicting Terms. If there is a direct conflict among the documents (except as explicitly stated otherwise) that make up the agreement between the Parties, the documents will control in the following order (first to last): (1) Amendment, (2) Order Form, and (3) this Agreement.
12.4. Entire Agreement. The Agreement along with any Exhibits, Order Form, and Amendments, sets out all terms agreed between the Parties and supersedes all other agreements between the Parties relating to its subject matter. In entering into the Agreement, neither Party has relied on, and neither Party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in the Agreement.
12.5. Export Controls. Customer agrees to comply with all export and re-export restrictions and regulations of the Department of Commerce and any other United States or foreign agencies and authorities in connection with Customer’s use of the Software. In particular, but without limitation, the Marpipe Software may not, in violation of any laws, be exported or re-exported (1) into any U.S. embargoed country or (2) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. Customer represents and warrants that Customer is not located in, under the control of, or a national or resident of any such country or on any such list.
12.6. Force Majeure. Marpipe will not be liable for failure or delay in its performance under the Agreement to the extent caused by circumstances beyond its reasonable control including but not limited to an act of God, war, insurrection, riot, strike or labor dispute, contagion, shortage of materials, fire, explosion, flood, government requisition or allocation, breakdown of or damage to plant, equipment or facilities, interruption or delay in transportation, internet or telecommunications outage, fuel supplies or electrical power, embargo, boycott, order or act of civil or military authority, legislation, regulation or administrative rules, or any inability to obtain or maintain any governmental permit or approval.
12.7. Governing Law. The Agreement is to be construed in accordance with and governed by the internal laws of the State of New York without regard to its conflict of laws principles. Any and all disputes arising out of or relating to this Agreement, including fraud in the inducement, whether in contract or tort, law or equity, shall be resolved by final arbitration before one arbitrator in accordance with the then applicable commercial rules of Judicial Arbitration and Mediation Implementation Services, Inc. Any arbitration shall take place in Manhattan, New York. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. If any Party to this Agreement brings an action to enforce its rights hereunder or to interpret or apply this Agreement, the prevailing Party shall be entitled to recover all of its costs and expenses, including legal interest thereon and all of its reasonable attorneys’ fees and costs incurred in connection with such action. Any claim or cause of action arising out of, related to or connected with this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned. The dispute resolution procedures in this section shall not apply prior to a Party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, confidential information, or trade secrets such remedies abovementioned requiring injunctive relief shall be heard in a court of competent jurisdiction located within New York County, NY.
12.8. Independent Contractors. The Agreement will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the Parties; the Parties will at all times be and remain independent contractors.
12.9. No Third-Party Beneficiaries. The Agreement does not confer any benefits on any third party unless it expressly states that it does.
12.10. Notices. All notices must be in writing and addressed to the other Party’s primary point of contact as set forth within the Order Form. For Marpipe, written notice may be sent to accounting@marpipe.com . Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).
12.11. Severability and Waiver. In the event that any provision of the Agreement (or any portion hereof) is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, the provision (or portion) will be enforced to the extent possible consistent with the stated intention of the Parties, or, if incapable of enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of the Agreement will continue in full force. The waiver by either Party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
12.12. Survival. Any portion of the Agreement that a reasonable Party would deem to survive termination of this Agreement shall survive including but not limited to: Payment Obligations, Restrictions, Proprietary Rights, Effect of Termination, Indemnification, Confidentiality, Limitation of Liability, relevant Order Form provisions, and Miscellaneous.
12.13. Modifications. Except as expressly provided herein, no modification of the Agreement will be effective unless contained in writing and signed by an authorized representative of each Party.