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Last Updated: March 18, 2021
Your use of the proprietary Mihi Software services offered at Mihi.com (the “Service” and/or “Services”) is subject to these Terms and Conditions. In order to use the Services, you must agree to be bound by these Terms and Conditions (“Agreement”) with Mihi Software, LLC (“Provider”). If you do not agree to all terms of this Agreement, you may not use the Service.
By signing up for the Service on behalf of an entity, you confirm that (a) you are duly authorized to represent the entity, (b) you accept the terms of this Agreement on behalf of such entity, and (c) any references to “you” in this Agreement refers to such entity and all its employees, consultants, and agents (“Client”). You are responsible for all activity on the Service that occurs under your account.
“Authorized User” means Employee Users and Non-Employee Users.
“Client Data” means, other than Resultant Data, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Client or an Authorized User through the Services.
“Client Systems” means Client’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Client or through the use of third-party services.
“Documentation” means any manuals, instructions or other documents or materials that Provider provides or makes available to Client in any form or medium and which describe the functionality, components, features or requirements of the Services, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“Hosted Services” means the hosting, managing, operating and maintaining the SaaS Software for remote electronic access and use by Client and its Authorized Users in accordance with the terms and conditions of this Agreement.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Employee User” means any individual employee of Client authorized to use the Services via access credentials and otherwise in accordance with the terms and conditions of this Agreement.
“Non-Employee User” means any individual who is not an employee of Client authorized to use the Services via access credentials and otherwise in accordance with the terms and conditions of this Agreement.
“Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information or other content. “Processing” and “Processed” have correlative meanings.
“Provider IP” means the Services, the Documentation, and any and all intellectual property provided to Client or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Resultant Data and any information, data, or other content derived from Provider’s monitoring of Client’s access to or use of the Services, but does not include Client Data.
“Resultant Data” means information or data that is derived by or through the Processing of Client Data but which cannot be reverse engineered as Client Data or otherwise identifiable to a specific data subject.
“SaaS Software” means the Provider’s proprietary software application, which tracks, analyzes, and produces reports on various types of leave and other non-insurance employee benefits and which is responsive to local rules and regulations and designated indigenous languages, and all new versions, updates, revisions, improvements and modifications of the foregoing, which Provider provides remote access to as part of the Services.
“Services” includes the SaaS Software and related documentation, Hosted Services, Support Services and any other services provided by Provider to Client pursuant to the terms and conditions of this Agreement.
Provision of Access. Subject to and conditioned on the terms and conditions of this Agreement, Provider hereby grants Client a non-exclusive, non-transferable (except in compliance with Section 12(g)), non-sublicensable right to access and use the Services and Documentation during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Client’s internal use. Provider shall provide to Client the necessary passwords and network links or connections to allow Client to access the Services. The total number of Authorized Users will not exceed the number agreed upon by the Parties, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
Use Restrictions. Client shall not use the Services or Documentation for any purposes beyond the scope of the licenses granted in this Agreement. Client shall not at any time, directly or indirectly, and shall not permit any Authorized Users or third party to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) bypass or breach any security device or protection in connection with the Services; (v) remove any proprietary notices from the Services or Documentation; (vi) access or use the Services or Documentation for purposes of competitive analysis of the Services or Documentation, the development, provision or use of a competing software service or product or any other purpose that is to Provider’s detriment or commercial disadvantage; or (vii) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable Law. Subject to the other terms and conditions of this Agreement, Employee Users will have full access to all features and functionality of the Services, as updated from time to time. Non-employee Users’ access to the Services will be limited to the features and functionality necessary to produce reports.
Reservation of Rights. Provider reserves all rights not expressly granted to Client in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Client’s and any Authorized User’s access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Client’s or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Client, or any Authorized User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable Law, Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the Services to Client or any Authorized User is prohibited by applicable Law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Client to access the Services; or (iii) in accordance with Section 5(g)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider will have no liability for any Losses (including any loss of data or profits), or any other consequences that Client or any Authorized User may incur as a result of a Service Suspension.
Resultant Data. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Client’s use of the Services and collect and compile Resultant Data. As between Provider and Client, all right, title, and interest in Resultant Data, and all intellectual property rights therein, belong to and are retained solely by Provider. Client acknowledges that Provider may compile Resultant Data based on Client Data input into the Services. Client agrees that Provider may (i) make Resultant Data publicly available in compliance with applicable Law, and (ii) use Resultant Data to the extent and in the manner permitted under applicable Law.
General. Client is responsible and liable for all uses of the Services and Documentation resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Client is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Client will be deemed a breach of this Agreement by Client. Client shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
Client Systems and Cooperation. Client shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the Provider’s reasonable instructions all Client Systems on or through which the Services are accessed or used; (b) provide Provider personnel with such access to the Client Systems as is necessary for Provider to perform the Services in accordance with the Availability Requirement; and (c) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement.
Effect of Client Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Client Failure”).
Service Levels. Subject to the terms and conditions of this Agreement, Provider will use commercially reasonable efforts to make the Hosted Services Available at least ninety-nine percent (99.0%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below in this Section 4(a) (the “Availability Requirement”). “Available” means the Hosted Services are available for access and use by Client and its Authorized Users over the Internet. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Hosted Services will be considered un-Available in connection with any failure to meet the Availability Requirement or impaired ability of Client or its Authorized Users to access or use the Hosted Services that is due, in whole or in part, to any: (a) act or omission by Client or any Authorized User; (b) Client Failure; (c) Client’s or its Authorized User’s Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Provider pursuant to this Agreement; (f) Scheduled Downtime; (g) disabling, suspension or termination of the Services in accordance with this Agreement; or (h) other circumstances beyond Provider’s reasonable control or ability to mitigate using reasonable and appropriate measures, including without limitation Client’s or any Authorized User’s misuse of the Hosted Services or use of the Services other than in compliance with the express terms of this Agreement, the Documentation and Provider’s reasonable instructions. If Hosted Services are Available less than 99.0% of the time during a Service Period and none of the Exceptions apply, Provider will credit Client a percentage of Mihi User Fees charged during the Service Period corresponding to the difference between the Availability Requirement and actual Availability. For example, if Services are Available 98% of the time during a Service Period, Provider will issue a credit in the amount of 1% of the Mihi User Fees charged for that Service Period.
Scheduled Downtime. Provider will use commercially reasonable efforts to give Client at least twenty-four (24) hours prior notice of all scheduled outages of the Hosted Services (“Scheduled Downtime”).
Support. The Services include Provider’s standard customer support services (“Support Services”) in accordance with the support schedule (the “Support Schedule”). Provider may amend the Support Schedule from time to time in its sole discretion.
Security. Provider will employ security measures in accordance with applicable industry practice and applicable Law and which are appropriate given the nature of the Services and Client Data.
Fees. In accordance with this Section 5, Client shall pay Provider the fees set forth herein or within any proposal documents delivered to Client. (“Fees”).
Implementation Fee. Provider shall invoice the Client upon mutual signing of the contract and schedule a kick-off call. Client is responsible to pay the invoice upon receipt. Configuration processes will start upon receipt of implementation fees and the required information as requested by the Provider.
Invoicing of User Fees. At the beginning of each month, Provider will invoice Client in advance for Employee Users and Non-Employee Users as provided in this Section and in accordance with the Mihi User Fees.
Reimbursable Expenses. Client shall reimburse Provider for out-of-pocket expenses incurred by Provider in connection with performing the Services (“Reimbursable Expenses”). Reimbursable expenses are only incurred after prior written approval of Client.
Payment. Client shall pay all undisputed Fees and Reimbursable Expenses within fifteen (15) days after receipt of invoice. Client shall make all payments hereunder in US dollars or other equivalent currency as may be agreed upon from time to time, to an account of Provider as specified to Client.
Taxes. All Fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Provider’s income.
Late Payment. If Client fails to make any payment when due, then, in addition to all other remedies available to Provider: (i) Provider may charge interest on the past due amount at the rate of 18% per annum, calculated and compounded daily, or, if lower, the highest rate permitted under applicable Law; (ii) Client shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including reasonable attorneys’ fees, court costs and collection agency fees; and (iii) if such failure continues for fifteen (15) days following written notice thereof, Provider may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Client or any other Person by reason of such suspension.
Disputed Invoices. Client shall notify Provider in writing of any dispute with any invoice (along with a reasonably detailed description of the dispute) within thirty (30) days from Client’s receipt of such invoice. Invoices for which no such timely notification is received shall be deemed accepted by Client as true and correct, and Client shall pay all amounts due under such invoices within the period set forth in Section 5(e). The parties shall seek to resolve all such disputes expeditiously and in good faith.
No Deductions or Setoffs. All amounts payable to Provider under this Agreement shall be paid by Client to Provider in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason.
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable Law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of this Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable Law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable Law.
Provider IP. Client acknowledges that, as between Client and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP.
Client Data. Provider acknowledges that, as between Provider and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to the Client Data. Client hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be necessary for Provider to provide the Services to Client, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Client Data incorporated within the Resultant Data.
Feedback. If Client or any of its employees or contractors sends or transmits any communications or materials to Provider suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Client hereby assigns to Provider on Client’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use or implement any Feedback.
Provider warrants that the Services will conform in all material respects to the Availability Requirements when accessed and used in accordance with the Documentation. The remedies set forth in Section 4 are Client’s sole remedies and Provider’s sole liability under the limited warranty set forth in this Section 8(a). Provider represents, warrants and covenants to Client that Provider will perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. Except for the limited warranties set forth in this Section 8, the Provider IP is provided “AS IS” and Provider hereby disclaims all other warranties, whether express, implied, statutory, or otherwise. Provider specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, and all warranties arising from the course of dealing, usage, or trade practice. Except for the limited warranty set forth herein, Provider makes no warranty of any kind that the Provider IP, or any products or results of the use thereof, will meet Client’s or any other person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system or other services, or be secure, accurate, complete, free of harmful code or error free.
Provider Indemnification. Provider shall indemnify, defend, and hold harmless Client from and against any and all Losses incurred by Client resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Client promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
If such a claim is made or appears possible, Client agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Client to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Client. This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; (C) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Client by or on behalf of Provider; (D) any act, omission or other matter described in Section 9(b), whether or not the same results in any action or Losses by any Provider Indemnitee.
Client Indemnification. Client shall indemnify, hold harmless, and, at Provider’s option, defend Provider, its Subcontractors and affiliates, and each of its and their respective shareholders, members, directors, managers, officers, employees, agents, successors and assigns (each, a “Provider Indemnitee”) from and against any Losses resulting from any Third-Party Claim that the Client Data, or any use of the Client Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Client’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Client may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
Sole Remedy. This Section 9 sets forth Client’s sole remedies and Provider’s sole liability and obligation for any actual, threatened, or alleged claims that the Services or Provider IP infringe, misappropriate, or otherwise violate any intellectual property rights of any third party.
In no event will Provider be liable under or in connection with this Agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, or otherwise for any: (a) consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages; (b) increased costs, diminution of value or lost business, production, revenues, or profits; (c) loss of goodwill or reputation; (d) use, inability to use, loss, interruption, delay or recovery of any data, or breach of data or system security; or (e) cost of replacement goods or services, in each case regardless of whether provider was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable. In no event will Provider’s aggregate liability arising out of or related to this Agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise exceed the total amounts paid to Provider under this Agreement in the 12 month period preceding the event giving rise to the claim.
Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until one (1) year from the Effective Date (the “InitialTerm”). This Agreement will automatically renew for successive one (1) year terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).
Termination. In addition to any other express termination right set forth in this Agreement:
Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Client shall immediately discontinue use of the Provider IP and, without limiting Client’s obligations under Section 6, Client shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Client’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Client to any refund.
Survival. Sections 1, 2(b)–(e), 5, 6, 7, 8(c), 9, 10, 11(c) and (d), and 12 and any other right or obligation of the parties that, by its nature, should survive termination or expiration shall survive any termination or expiration of this Agreement.
Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement; (ii) second, any exhibits or addendums to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
Force Majeure. In no event shall Provider be liable to Client, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of Law or any action taken by a governmental or public authority, including imposing an embargo.
Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal Laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the Laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be resolved at the request of either Party through binding arbitration. Arbitration will be conducted in Santa Clara County, California, under the rules and procedures of the American Arbitration Association (“AAA”). The Parties will request that AAA appoint a single arbitrator.
Assignment. Client may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of Law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
Subcontractors. Provider may from time to time in its discretion engage third parties to perform services (each, a “Subcontractor”). Provider will be responsible for the acts and omissions of its Subcontractors and engagement of any subcontractor shall not relieve Provider of its obligations hereunder.
Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
Export Regulation. The Services utilize software and technology that may be subject to US export control Laws, including the US Export Administration Act and its associated regulations. Client shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by Law. Client shall comply with all applicable Law and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.
US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Client is an agency of the US Government or any contractor therefor, Client only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Client, Section 2(b), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other electronic means is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
This Support Schedule is incorporated into the Agreement between Provider and Client to which it is attached.
For purposes of this Support Schedule, the following terms have the meanings set forth below. All capitalized terms in this Support Schedule that are not defined in this Section 1 or otherwise below shall have the respective meanings given to them in the Agreement.
“Client Cause” means any of the following causes of an Error, except, in each case, any such causes resulting from any action or inaction that is authorized by this Support Schedule or the Agreement, specified in the then-current Documentation, or otherwise authorized in writing by Provider: (a) any negligent or improper use, misapplication, misuse or abuse of, or damage to, the Services by Client or its Representatives; (b) any maintenance, update, improvement or other modification to or alteration of the Services by Client or its Representatives; (c) any use of the Services by Client or its Representatives in a manner inconsistent with the then-current Documentation; or (d) any use by Client or its Representatives of any Third-party Products that Provider has not provided or caused to be provided to Client.
“Error” means any reproducible failure of the Services to operate in all material respects and where no work around is available.
“Out-of-scope Services” means any of the following: (a) any services requested by Client and performed by Provider in connection with any apparent Error reasonably determined by the Provider to have been caused by a Client Cause; and (b) any other services that Client and Provider may from time to time agree in writing are not included in the Support Services.
“Representatives” means, with respect to a party, that party’s employees, officers, directors, consultants, agents, subcontractors and legal and financial advisors.
“Resolve”, “Resolved”, “Resolution” and correlative capitalized terms mean, with respect to any particular Support Request, that Provider has corrected the Error that prompted the applicable Support Request in all material respects or provided a sufficient work-around for the applicable Support Request.
“Support Hours” means 8:00 a.m. to 5:00 p.m. (India Standard Time – IST or GMT +5.30), excluding national holidays calendar as observed by Provider. All support emails will be replied to within 48 hours.
“Support Period” means the Term and, if requested by Client, any period during which Client transfers the Support Services to an alternate service provider.
“Support Request” has the meaning set forth in Section 3.1.
“Support Schedule” has the meaning set forth in Section 2.2.
“Support Services” means the identification, diagnosis and Resolution of Errors by the provision of the following, with respect to the then-current version and release of the Services, by help desk technicians sufficiently qualified and experienced to identify and Resolve Client’s Support Requests reporting these Errors: (a) e-mail assistance; and (b) access to technical information on the Provider’s website for proper use of the Services.
“Technical Contact” has the meaning set forth in Section 3.2.
“Third-party Products” means all third-party software, computer hardware, network hardware, electrical, telephone, wiring and all related accessories, components, parts and devices.
Provider shall perform Support Services during the Support Hours throughout the Support Period in accordance with the terms and conditions of this Support Schedule and the Agreement.
Provider shall use commercially reasonable efforts to:
Provider shall respond to all Support Requests in accordance with the following schedule (the “Support Schedule”):
Provider shall give Client regular electronic or other written reports and updates of the nature and status of its efforts to Resolve any Error, including a description of the Error and the estimated time of Provider’s response and Resolution.
Support Requests. Client may request Support Services regarding an Error by way of a support request, which shall include a description of the reported Error and the time Client first observed the Error (each a “Support Request”). Client shall notify Provider of each Support Request by e-mail at firstname.lastname@example.org, or such other means as the parties may agree to in writing.
Technical Contact. Client’s technical contacts for purposes of this Support Schedule (each such individual, a “Technical Contact”) are as set forth below, or as amended by Client providing written notice to Provider from time to time. The Technical Contact(s) shall be the individual(s) who will act as a direct liaison with Provider and be responsible for communicating with, and providing timely and accurate information and feedback to, Provider in connection with the Support Services. The Technical Contact(s) will be the sole liaison(s) between Client and Provider in sending Support Requests and communicating with Provider in connection with any matters relating to the provision of the Support Services.
Technical Contact: email@example.com
Client Obligations. Client shall, by and through its Technical Contact(s), provide the Provider with:
In addition to the mechanisms for giving notice specified in Section 12(b) of the Terms of Service, unless expressly specified otherwise in this Support Schedule or the Agreement, the parties may use e-mail for communications on any matter referred to herein.
This Implementation Guide is incorporated into the Agreement between Provider and Client. All capitalized terms not otherwise defined herein shall have the meanings given to them in the Agreement.
Mihi Implementation Services. Company will implement and customize the Services to address the following:
Input. To provide the Services, the Company requires: