This is the standard services agreement applicable to Miro’s Enterprise Plan users. Miro requires a signed Order Form for Enterprise Plan purchases. Please contact firstname.lastname@example.org for details.
Publication date: May 15, 2019
This Master Subscription Agreement ("MSA") is entered into by and between RealtimeBoard Inc. dba Miro, a Delaware
corporation with offices at 201
Spear Street, Suite 1100, San Francisco, CA 94105 (“MIRO”) and the Customer listed on the Order Form. This Agreement is effective
as of the date of
last signature on the first Order Form entered into by the parties (“Effective Date”).
For the avoidance of doubt and clarity, this Agreement shall apply only to Users authorized by Customer under this Agreement. The terms of this Agreement shall supersede any “click-through” agreements which may be presented to Users when using the Service. Company personnel who use any MIRO products and offerings through a free, team or other account will not be governed by this Agreement and be subject to the terms agreed upon and applicable to such respective account(s).
“Account” means the enterprise Service account provided by MIRO to Customer in connection with an Order Form.
“Affiliates” means any person, corporation, partnership or entity that, directly or indirectly, through one or more intermediaries, controls a party under this Agreement. For the purposes of this definition, “control” means the ownership or control of at least 50% of the total equity, shares, memberships or voting interests in the subject entity.
“Agreement” means collectively, this MSA and all applicable Order Forms, addenda, appendices, exhibits, attachments and amendments thereto.
“Beta Service” means a product, service, functionality, or feature that MIRO makes available to Customer to try at Customer’s option at no additional charge which is designated by MIRO as beta, limited release, preview, non-production, or other similar description.
“Customer” means the company that purchases the Service(s) pursuant to an Order Form or such company’s permitted affiliates, successors or assigns.
“Customer Data” means all information Customer and/or its User(s) load or otherwise inputs into the Service.
“Full User” means employees, contractors and/or consultants that are authorized by Customer to use and access the Services through Customer’s Account for the sole benefit of Customer on an annual basis. A Full User will occupy one Full User seat.
“Day User” means employees, contractors and/or consultants that are authorized by Customer to use and access the Services through Customer’s Account for the sole benefit of Customer on a per day basis.
"Order Form" means an ordering document specifying the Services to be provided under this Agreement, including any product terms incorporated therein and any amendments or supplements thereto.
“Service(s)” means the proprietary web-based software as a service (“SaaS”) product suite, documentation, materials, training and related services provided by MIRO to Customer in accordance with the terms of this Agreement.
“Service Fees” means the fees agreed upon by Customer to be paid for the Service, as specified on each Order Form.
“Subscription Term” means the period of time Customer agrees to subscribe to the Services, as identified on each Order Form.
“Term” means all Subscription Terms collectively, including any renewals.
“User” is a Full User or Day User who has been provided access to the Service by Customer under this Agreement.
Services Terms and Conditions
Services Description. During the Term and subject to the terms and conditions of this Agreement, MIRO will make available to Customer the Services at www.miro.com (including its subdomain and other websites provided by MIRO from time to time). From time to time, MIRO may implement Beta Services, new products or new features at additional cost, subject to execution of an additional Order Form(s). MIRO does not guarantee that any future upgrades or Service offerings will be included in Customer’s subscription and reserves the right to make periodic software updates, upgrades, patches, fixes, modifications and/or documentation to the Services which may be offered to Customer subject to additional fees. Notwithstanding anything to the contrary, if MIRO determines that a law or regulatory action prohibits, substantially impairs or makes impractical the provision of any Service, MIRO may, at its sole discretion and on notice to Customer and without any liability, modify or suspend the Service in order to conform to such law or action. Customer’s right to use the Service shall be subject to all further terms and conditions set forth in each Order Form.
Beta Services. MIRO may make Beta Services available to Customer in its sole discretion. Customer may choose to try such Beta Services in its sole discretion. Beta Services are (i) intended for evaluation purposes only, (ii) not for production use, (iii) not fully supported and (iv) may be subject to additional terms and conditions. Beta Services are not considered “Services” under this Agreement, but all restrictions, reservation of rights, Customer’s obligations concerning the Services, and rights granted by Customer to MIRO regarding Customer Data will apply equally to Customer’s use of Beta Services. Unless otherwise agreed by the parties, use of Beta Services shall expire on the date a version of the Beta Services becomes generally available without the applicable Beta Service designation or such other date as designated by MIRO in its sole discretion. MIRO may discontinue Beta Services at any time in its sole discretion and/or never make them available to Customer. Beta Services are provided “AS IS” and MIRO will have no liability for any harm or damage arising out of a Beta Service.
Customer’s right to access and use the Service shall commence as specified in the appropriate Order Form and shall terminate upon subscription expiration or as otherwise indicated herein. MIRO hereby grants Customer a fee-bearing, limited, revocable, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-assignable (except to the extent permitted under this Agreement), non-sublicensable license to install and use the Service solely for Customer’s internal use and strictly in accordance with the terms set forth in this Agreement (“License”).
Customer’s License may include Full User seats, Day User seats or any combination thereof. All Licenses are provided by MIRO on a “per seat” basis which requires a User seat for each individual using the Services. MIRO does not permit shared User seats for the Services under any circumstances. Customer agrees to use reasonable measures to prevent multiple Users from using the same licensed User seat.
Additional User seats requested to an existing Account during an active Subscription Term will be co-terminus with the originally signed Order Form for Services, and Service Fees will be prorated through the remainder of the Term.
Username/Passwords. In order to use the Services, MIRO may provide a username/password combination or similar authorization keys for each User. In order to get access to the Service, Customer may provision an individual as a User under Customer’s account. Customer shall remain solely responsible for all Users’ compliance with this Agreement, including without limitation confidentiality and security related to its Account usernames and passwords.
Support/Availability. MIRO shall provide reasonable technical support to Customer during the applicable Subscription Term. MIRO will update and maintain the Service throughout Customer’s Subscription Term at MIRO’s reasonable commercial discretion. When using the Service, information or data may be transmitted over a connection or medium that may be beyond the control of MIRO and/or its suppliers, vendors, and partners. Accordingly, MIRO assumes no liability for or relating to the delay, failure, interruption, transmission or corruption of any information or data transmitted in connection with use of the Service that is not attributable to the sole fault of MIRO, including without limitation, data breaches or use or misuse of information transmitted or received using the Services.
Orders by Affiliates. Customer’s Affiliates may purchase the Service from MIRO directly for their own use upon execution of an Order Form referencing this Agreement. Upon execution of an Order Form by MIRO and the Affiliate, the Affiliate will be bound by the provisions of this MSA as if it were an original party hereto. In such instance, the Order Form between MIRO and the Customer Affiliate will be deemed a separate agreement between MIRO and such Customer Affiliate that incorporates the terms of this MSA, such Customer Affiliate will be interpreted as the “Customer” (as used in this Agreement), and Customer consents to MIRO sharing a copy of this MSA with such Customer Affiliate.
Prohibited Activities. Except as expressly permitted hereunder, Customer hereby agrees not to: (a) commercially distribute, resell frame, mirror, lease, license, sell, rent, lend, convey or otherwise transfer or assign the Service in whole or part; (b) allow Users to share User seats, including without limitation, sharing any usernames and/or passwords to access the Service; (c) allow any third party to access or use the Service, (c) copy, scrape, data mine, reverse engineer, decompile, disassemble, prepare derivative works based on or otherwise modify or attempt to derive source code or unauthorized data from the Service, in whole or in part; (d) remove, obscure or modify any copyright, trademark or other proprietary rights notices, marks or labels contained on or within the Service, or falsify or delete any author attributions, legal notices or other labels of the origin or source of the Service; (e) misrepresent the source of ownership of the Service; (f) export or re-export (directly or indirectly) the Service into or permit it to be accessed from any country or person forbidden to receive the Service by any export laws or regulations, or where the Service is otherwise in violation of such country’s laws and/or regulations; (g) engage in any fraudulent, misleading, illegal or unethical activities related to the Service or that otherwise may be detrimental to MIRO; (h) use the Service to store or transmit infringing, libelous, or other unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (i) store or transmit virus, malware, or other malicious or harmful code or files through the Service; (j) interfere with or disrupt the integrity or performance of the Service; (k) attempt to gain unauthorized access to Service or their related systems or networks; (l) access or use the Service to (i) develop or improve a competitive product or service, or (ii) copy any features, functions, content, format, graphics, modules, algorithms, arrangement, method of organization, method of interaction, or other design of the Service for itself, its Affiliates, or a third party; (m) encourage conduct which would potentially give rise to a claim of defamation and/or libel against MIRO; (n) violate Customer’s internal security policies; (o) plagiarize or infringe the intellectual property rights of any third party; (p) upload, post or otherwise disseminate any objectionable content; and/or (q) use the Service other than for Customer’s own legitimate internal business purposes.
Compliance. Customer agrees to comply with all applicable laws, rules and regulations applicable to the access and/or use of the Services. If Customer becomes aware of any violation of Customer’s obligations under this Agreement by Customer, User(s) or any third party, Customer will immediately terminate such activities and notify MIRO in writing within five (5) business days, and Customer agrees to reasonably cooperate with MIRO to mitigate any damages that may have been cause by any violation hereto. MIRO reserves the right to suspend or terminate Customer’s and/or specific Users’ access to the Service to prevent or mitigate violation of the terms set forth in this Agreement, including without limitation, the foregoing prohibited use provisions; provided, that MIRO will use its reasonable efforts to provide Customer notice of any suspected violation and an opportunity to cure the violation prior to suspension unless such violation is reasonably uncurable by its nature.
Fees, Taxes and Payment. Customer will pay MIRO the Service Fees in U.S. Dollars in the amounts and at the time(s) specified on the applicable Order Form. Unless otherwise stated in an Order Form, all Service Fees are payable and due within thirty (30) days from the invoice date. All Service Fees are non-cancelable and non-refundable. If payment in full is not received by the due date, MIRO may suspend Customer’s access to Service until overdue amounts are paid in full. Customer is responsible for any sales, use, value added, excise, property, withholding or similar tax and any related tariffs, and similar charges, except taxes based on MIRO’s income. If Customer is required to pay any such taxes, Customer shall pay such taxes with no reduction or offset in the amounts payable to MIRO hereunder. If an applicable tax authority requires MIRO to pay any taxes that should have been payable by Customer, MIRO will advise Customer in writing, and Customer will promptly reimburse MIRO for the amounts paid. MIRO reserves the right to offset any amounts due by Customer to MIRO hereunder with Service Fees received.
Audit. In order to confirm compliance with this Agreement, MIRO may, at its expense and not more frequently than annually, audit Customer’s records, data and information relating to Customer’s use of the Service. Customer agrees to reasonably cooperate with respect to any such audit. Any such audit shall be conducted with at least thirty (30) days’ notice, during regular business hours online or at Customer’s facilities and shall not unreasonably interfere with Customer’s business. If the audit indicates a discrepancy in the fees payable to MIRO greater than five percent (5%) of the Service Fees paid by Customer for the period audited, Customer shall pay MIRO’s reasonable expenses of the audit in addition to any additional Service Fees and other amounts due.
Term and Termination
Term of Agreement. The Term of this Agreement commences on the Effective Date and continues until all Order Forms have either expired or have been terminated.
Subscription Term. Each Subscription Term will run for the period specified in the applicable Order Form. Except as otherwise specified in an Order Form, at the end of the then-current Subscription Term, the Subscription Term will automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is longer), unless either party gives the other notice of non-renewal at least ninety (90) days before the end of the relevant Subscription Term.
Termination for Breach. Either party may terminate this Agreement (including all related Order Forms) if the other party: fails to cure any material breach of this Agreement within thirty (30) days after delivery of written notice of such breach; ceases operation without a successor; or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
Effect of Termination. Immediately upon termination of this Agreement, Customer and all Users shall immediately cease all use of the Service, and MIRO will discontinue providing Customer and Users access to the Account. Within ten (10) business days following the termination date, Customer shall, at MIRO’s option, return to MIRO or destroy (and certify to MIRO in writing as to such destruction) all copies of materials embodying or reflecting the Service, documentation and any other MIRO Confidential Information. Upon termination or expiration of this Agreement or an Order Form for any reason, other than termination by Customer for MIRO’s breach, any amounts owed to MIRO under an Order Form before such termination or expiration will be immediately due and payable. In addition, Customer will immediately pay MIRO, as liquidated damages based on the varying levels of effort required over time to maintain Customer’s subscription, the remaining balance (if any) identified on the Order Form for the remainder of the then-current Subscription Term.
Transition Services. At any time during the Subscription Term, Customer may export its Customer Data then-stored in the Service in accordance with the capabilities of the Service. For up to 30 days after the end of a Subscription Term, following Customer’s written request, MIRO will grant Customer access to its Account for the sole purpose of exporting the Customer Data then-stored in the Service; provided, that, (i) if any assistance is required by Customer from MIRO, Customer will pay MIRO its then-current rates for such assistance, and (ii) following such 30-day period, MIRO is not obligated to retain a copy of Customer Data then-stored in the Service and may delete Customer Data in accordance with its deletion policies and procedures, and Customer hereby consents to any such deletion. IF CUSTOMER ELECTS TO PROACTIVELY DELETE CUSTOMER’S ACCOUNT AT ANY TIME, ALL ASSOCIATED CUSTOMER DATA WILL BE DELETED PERMANENTLY AND CANNOT BE RETRIEVED.
Survival. Sections 5 through 11 shall survive any termination of this Agreement; provided that Section 8 shall only survive to the extent applicable to a Claim arising prior to the termination date.
What MIRO Owns.
- The Service is and shall at all times remain solely the proprietary intellectual property of MIRO and its licensors, protected by all U.S. and foreign copyright, proprietary and other intellectual property laws. Except for the rights expressly granted herein, MIRO and its licensors retain all right, title and interest, including all intellectual property rights, in the Service, including without limitation, underlying software, source code, data, design, modules, organization, format, algorithm, documentation and other technology and any modification, derivative works of or improvements thereto. Even if the terms “purchase” and “sale” are used, Customer does not receive ownership rights in the Service and has only those use rights in this Agreement. MIRO retains all rights not explicitly granted herein. Trademarks, logos and the like used in connection with Service are the trademarks of their respective owners.
- Notwithstanding anything to the contrary herein, Customer agrees that MIRO may collect feedback, recommendations and aggregated data related to Customer, Users and the Service (“Service Data”). MIRO may use Service Data to develop, improve, support, and operate its products and services during and after the Term of this Agreement. This Section does not give MIRO the right to identify Customer or any User as the source of any Service Data without prior written consent. Customer grants to MIRO a royalty-free, worldwide, transferable, sublicensable, irrevocable, and perpetual license to use or incorporate into any MIRO product, offering or service any suggestions, enhancement requests, recommendations, or other feedback provided by Customer or its Users relating to the Service.
What Customer Owns. Customer retains all rights to its Confidential Information and Customer Data, except that Customer agrees that MIRO may use and access for the purpose of providing the Services and related support to Customer. MIRO disclaims all ownership and other rights as to Customer Data, except any limited rights granted by Customer to provide the Services.
No Ownership Transfer. Neither party will acquire any ownership rights or other intellectual property rights in any property of the other party, whether pre-existing or developed during the course of this Agreement as related to the Services, of whatever nature. Neither party shall have right to exploit, copy, amend, add to or otherwise alter any part thereof. Nothing in this Agreement shall be interpreted as explicitly or implicitly enabling any assignment, implied license or transfer of any intellectual property rights. These restrictions, limitations, exclusions and conditions shall apply even if a party or any of its Affiliates become aware of or fail to act in a manner to address any violation or failure to comply therewith.
Confidential Information. Subject to the limitations in Section 6.2, all information disclosed by one party to the other party during the term of this Agreement, whether in oral, written, graphic or electronic form, shall be deemed to be “Confidential Information”.
Exceptions. Confidential Information does not include information which: is part of the public domain at the time of disclosure; becomes a part of the public domain through no fault of the receiving party or persons or entities to whom the receiving party has disclosed, transferred or permitted access to such information; becomes available to the receiving party on a non-confidential basis from a source legally entitled to share the information without confidential treatment; is independently developed by the receiving party without use of or access to the disclosing party's Confidential Information; or is released from the confidentiality obligations herein by written consent of the disclosing party.
Nondisclosure. Except as expressly permitted hereunder, each party covenants that it will not disclose any Confidential Information of the other party to any person or entity; provided, that a receiving party may disclose Confidential Information as follows: to receiving party’s employees, directors, consultants, advisors and agents who have a need to know such information and who are subject to written confidentiality obligations with such receiving party at least as protective as the obligations imposed by disclosing party herein; with prior written consent from the disclosing party or pursuant to the terms of a valid and effective subpoena, court order or other government administrative order; provided, that the receiving party immediately notifies the disclosing party in writing (to the extent legally permitted) of the existence, terms and circumstances surrounding such a request so that the disclosing party may seek appropriate protective action.
Survival. Upon termination of this Agreement, all of the receiving party’s obligations hereunder will survive: (a) with respect to trade secrets, for so long as the information continues to constitute a trade secret under applicable law; (b) with respect to non-public, personally identifiable information regarding the disclosing party’s personnel, customers, or other third parties, for so long as required by applicable laws; and (c) as to all other information for so long as it meets the definition of Confidential Information above. Neither party may use the other party's Confidential Information in any directly competitive manner or for any purpose other than to exercise its rights and comply with its obligations under this Agreement.
Return upon termination. On the disclosing party’s request, the receiving party must return or destroy on demand all Confidential Information of the disclosing party other than: (a) records the receiving party has a separate legal right or obligation to retain; and (b) copies of Confidential Information created in the ordinary course of the receiving party’s business and retained in accordance with its internal document retention and information technology policies.
Representations and Warranties
Authority. Each of MIRO and Customer represents and warrants that: it has the full right, power and authority to enter into and fully perform this Agreement; the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; its entry herein does not violate any other agreement by which it is bound; and it is a legal entity in good standing in the jurisdiction of its formation.
Disclaimer of Warranties. MIRO DOES NOT WARRANT THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE OPERATION OF THE SERVICE WILL OPERATE IN COMBINATION WITH NON-MIRO PROGRAMS USED BY CUSTOMER, THAT THE FEATURES OR FUNCTIONALITIES OF THE SERVICE WILL BE AVAILABLE AT ANY TIME IN THE FUTURE OR THAT ALL ERRORS IN THE SERVICE OR DOCUMENTATION WILL BE CORRECTED. MIRO SHALL HAVE NO RESPONSIBILITY FOR DETERMINING THAT CUSTOMER’S PROPOSED USE OF THE SERVICE COMPLIES WITH APPLICABLE LAWS IN CUSTOMER’S JURISDICTION(S). THE WARRANTIES ABOVE ARE THE EXCLUSIVE WARRANTIES REGARDING THE SERVICES AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES BY MIRO, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Indemnification by MIRO. MIRO at its own expense will defend or settle any claims, actions and demands brought by anyone other than a Customer Related Party (as defined below) against Customer and its Related Parties (collectively “Claims”) where the third party expressly asserts that the Service: infringes such third party’s trademark or copyright arising under the laws of the United States, or MIRO misappropriated such third party’s trade secrets in the development of the Service. “Related Parties” means Affiliates, successors, assigns, members, shareholders, officers, directors and agents of MIRO or Customer, as applicable. If MIRO believes the Service, or any part thereof, may be the subject of an infringement or a misappropriation claim as to which this Section 8.1 applies, then MIRO may, in its discretion and at its sole expense: (1) procure for Customer the right to continue using such Service or any applicable part thereof, (2) modify or replace the Service so as to make it non-infringing, or (3) terminate this Agreement and refund to Customer any unused prepaid fees for periods following the termination date. This section 8.1 states MIRO’s sole liability to, and Customer’s exclusive remedy for intellectual property infringement claims of any kind in connection with the Service.
Indemnification by Customer. Customer at its own expense will defend, indemnify and hold MIRO and its Related Parties harmless against any liabilities, damages, fines, judgments, settlements, costs or expenses (including reasonable attorney’s fees and disbursements) arising out of Claims made or brought by anyone other than a MIRO Related Party alleging misappropriation, misuse or breach of applicable law related to Customer Data or Customer’s use of the Services in breach of the terms in this Agreement.
Indemnification Procedure. Promptly after a party seeking indemnification obtains knowledge of the existence or commencement of a Claim, the party to be indemnified will notify the other party of the Claim in writing; provided however, that the indemnifying party’s indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by this failure to give notice. The indemnifying party will assume the sole control of defense and settlement of the Claim with counsel reasonably satisfactory to the indemnified party at the indemnifying party’s risk and expense; provided, however, the indemnified party may join in the defense and settlement of the Claim and employ counsel at its own expense, and will reasonably cooperate with the indemnifying party in the defense and settlement of the Claim. The indemnifying party may not settle any Claim without the indemnified party’s written consent unless the settlement: (1) includes a release of all covered Claims pending against the indemnified party; (2) contains no admission of liability or wrongdoing by the indemnified party; and (3) imposes no obligations upon the indemnified party other than an obligation to stop using any infringing items.
Indemnification Exclusions. MIRO shall not have any indemnification obligation pursuant to this Agreement to the extent a claim is based on: use of any version of the Service other than the then-current, unaltered version, if infringement would have been avoided by use of a current, unaltered version thereof that has been made available to Customer; use of the Service in violation of this Agreement or in combination with a third-party service contributing to the claim; unauthorized modifications to the Service made by Customer; where Customer continues to use the Service after being notified of allegedly infringing activity or being informed of modifications that would have avoided the alleged infringement; or Customer Data.
Entire Liability. This section 8 states the entire liability of the indemnifying party, and the indemnified party’s exclusive remedy with respect to any Claim.
Limitations of Liability
NO INDIRECT DAMAGES. EXCEPT FOR CLAIMS BASED ON CUSTOMER’S MISAPPROPRIATION OF MIRO INTELLECTUAL PROPERTY AND CUSTOMER’S INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS (INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF REVENUE, LOSS OF DATA OR DATA USE, EVEN IF THE PARTY AND/OR ITS LICENSORS HAS/HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LIMIT ON DIRECT DAMAGES. EXCEPT FOR CLAIMS BASED ON CUSTOMER’S MISAPPROPRIATION OF MIRO INTELLECTUAL PROPERTY AND CUSTOMER’S INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, THE AGGREGATE, CUMULATIVE LIABILITY OF EACH PARTY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO MIRO DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS TO MIRO.
Allocation of Risk. The provisions of this Agreement fairly allocate the risks between MIRO and Customer. Customer acknowledges and agrees that the pricing reflects this allocation of risk and the limitation of liability specified herein, and that MIRO would not enter into this Agreement without such allocation and limitation.
Data Processing and Protection
General Requirements. MIRO will maintain appropriate administrative, physical, and technical safeguards for protection of the security and integrity of Customer Data. MIRO will promptly notify Customer after MIRO confirms an incident of unauthorized access to Customer Data under MIRO’s control and possession. Each party will reasonably cooperate with the other with respect to the investigation and mitigation of any such unauthorized access. Upon confirmation of any vulnerability or breach of MIRO’s security, MIRO will reasonably modify its processes and security program as necessary to remediate the vulnerability or breach at MIRO’s expense.
Data Processing Addendum. Solely to the extent that (i) the General Data Protection Regulation (EU) 2016/679 (“GDPR”) is applicable to Customer and (ii) Customer elects to load Customer Data into the Services that is subject to GDPR regulation, the terms Data Processing Addendum, available here (“DPA”), shall apply and be incorporated by reference herein.
Independent Contractors. The parties to this Agreement are independent contractors, and no relationship of partnership, joint venture, employment, franchise or agency is hereby created between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
Force Majeure. A party’s performance of any part of this Agreement (except Customer’s payment obligations) will be excused to the extent that it is unable to perform due to natural disasters, terrorism, riots, insurrection, war, extraordinary governmental action or any other cause which is beyond the reasonable control of such party (“Affected Party”), not avoidable by reasonable due diligence, and not caused by the Affected Party (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the Affected Party will promptly notify the other party of the Force Majeure Event, including an estimate of its expected duration and probable impact on the performance of the Affected Party’s obligations under this Agreement. In addition, the Affected Party will (a) exercise commercially reasonable efforts to mitigate damages to the other party and to overcome the Force Majeure Event, and (b) continue to perform its obligations under this Agreement to the extent it is able.
Export Compliance. Each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports. Customer will not permit Users to access or use the Services in violation of any U.S. or foreign export embargo, prohibition, or restriction.
Third Party Applications and Services. Customer agrees that MIRO shall not be responsible for applications, services, software, or other products supplied by a third party (excluding MIRO’s licensors and contractors) (each a “Third Party Service”) that Customer chooses to use with or integrate with the Services, even if such Third-Party Service interoperates with a Service. Customer’s use of a Third-Party Service is subject to the terms and conditions of the provider of the Third-Party Service, and Customer agrees to comply with all such terms required by such Third-Party Service.
Customer List. Customer agrees that MIRO may identify Customer as a MIRO customer in or on MIRO’s demonstrations, website, or other promotional materials. MIRO’s use of Customer’s name and logo will be in accordance with any guidelines provided by Customer to MIRO. Upon Customer’s written request, MIRO will promptly remove Customer’s name or any Customer marks from MIRO’s website, and to the extent feasible, MIRO’s marketing materials.
No Waiver. A party’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment, or waiver is to be asserted.
General Announcements/Legal Notices. MIRO may send announcements of general interests by email or by posting on its website or through Customer’s Account, such as notices of new features or upcoming events. Notices to Customer will be sent to Customer’s designated contact information and Customer will immediately notify MIRO if Customer’s contact information changes. MIRO will provide Customer with legal notices by email, mail, or courier to the address provided by Customer. All legal notices to MIRO must be in writing and mailed to the address of MIRO’s then-current corporate headquarters listed on www.miro.com, to the attention of the Legal Department and with a copy emailed to email@example.com.
Integration. Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof, including NDAs executed prior to the Effective Date. Customer agrees that its purchases of all Services under this Agreement are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by MIRO regarding future functionality or features.
Subcontractors; Third Party Beneficiaries. MIRO may use subcontractors to deliver the Services and permit them to exercise the rights granted to MIRO under this Agreement to provide the applicable Service so long as MIRO remains responsible for (a) compliance of any such subcontractor with the terms of this Agreement, and (b) the overall performance of the Service as required under this Agreement. Except as otherwise provided in this Agreement, there are no third-party beneficiaries under this Agreement.
Anti-Bribery. Each Party represents that, in the execution of this Agreement and in the performance of its obligations under this Agreement, it has complied and will comply with all applicable anti-bribery Laws and regulations, including, without limitation, the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act and similar applicable Laws.
Construction; Interpretation; Conflicting Terms. This Agreement is the result of negotiations between and has been reviewed by each of the parties hereto and their respective counsel, if any; accordingly, this Agreement shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be construed in favor of or against any one of the parties hereto. Headings contained in this Agreement are for convenience of reference only and do not form part of this Agreement. A word importing the singular includes the plural and vice versa. Gendered pronouns are used for convenience and are intended to refer the masculine or feminine, as applicable. The word “including” shall be interpreted to mean “including without limitation”. If there’s a direct conflict between provisions in this Agreement, the conflict will be resolved by giving precedence to the provision as it appears in the highest-ranked document in the following order: (a) the relevant Order Form; (b) DPA, if applicable; and (d) the body of this MSA. No terms or conditions included (i) in any purchase order or order documentation (excluding Order Forms) provided by Customer to MIRO, or (ii) with Customer’s vendor set-up process will be incorporated into, or form any part of, this Agreement, and all such terms or conditions are null and void even if such terms or conditions are accepted by MIRO or MIRO accepts payment from Customer.
Severability. If any provision hereof or part thereof is found invalid or unenforceable, the remainder of this Agreement shall remain valid and in force. Without limiting the foregoing, it is expressly understood and agreed that in the event any remedy hereunder is determined to have failed of its essential purpose, all limitations of liability and exclusion of damages set forth herein shall remain in full force and effect.
Assignment. Neither party may transfer or assign this Agreement, or any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld); except that a party may assign this Agreement in its entirety without the other party’s consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the non-assigning party. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ respective successors and permitted assigns.
Governing Law; Dispute Resolution. This Agreement and the interpretation of the terms herein shall be governed by and construed in accordance with the laws of the State of Delaware, United States of America without giving effect to the principles thereof relating to conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement or Customer’s use of the Services. The parties irrevocably submit to the exclusive jurisdiction of the federal and state courts located in San Francisco, California for any claim arising out of or concerning the validity, performance or enforcement of this Agreement parties and hereby consent to the personal jurisdiction of such courts. Customer acknowledge and accept that claims brought against MIRO shall be only on an individual basis and not as a plaintiff or class member in any possible future class or representative action or similar proceeding. Unless otherwise agreed by Customer and MIRO, Customer may not adjoin or consolidate any claim with more than one person's; and Customer may not otherwise supervise or take over any form of a class, representative or consolidated proceeding. The parties hereby waive their constitutional and statutory rights to trial in front of a judge or a jury, instead electing that all claims and disputes be resolved by a competent judge.
Attorneys’ Fees. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees, expenses and costs in connection with such action.
Remedies. Other than as expressly stated in this Agreement, the remedies provided in this Agreement are in addition to, and not exclusive of, any other remedies of a party at law or in equity. Each party acknowledges that damages may be an inadequate remedy if the other party violates its obligations under this Agreement, and each party has the right, in addition to any other rights it may have, to seek injunctive relief without any obligation to post any bond or similar security.
Counterparts. This Agreement may be executed and delivered by facsimile or electronic signature and in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.