PLEASE READ THESE TERMS OF SERVICE CAREFULLY, INCLUDING THE MANDATORY ARBITRATION PROVISION WHICH REQUIRES THAT DISPUTES ARE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL AND NOT A CLASS-WIDE OR CONSOLIDATED BASIS.
BY ACCESSING OR USING OUR SERVICES (AS DEFINED BELOW), CUSTOMER (AS DEFINED BELOW) AGREES TO BE BOUND BY THESE TERMS OF SERVICE AND ALL TERMS INCORPORATED BY REFERENCE. IF CUSTOMER DOES NOT AGREE TO ALL OF THESE TERMS, DO NOT USE OUR SERVICES.
These Terms of Service (“Terms of Service”) are between MatrixDS, Inc. (“MatrixDS”) and either (i) you, in your individual capacity, or (ii) the entity on behalf of which you are entering into and accepting these Terms of Service via MatrixDS’s ordering portal on its website (in each case, “Customer”). These Terms of Service, together with all terms incorporated by reference herein are collectively, the “Agreement.” This Agreement applies to Customer’s access to and use of all MatrixDS software-as-a-service products or services and related software (collectively, the “Services”).
1. Service Offering
(a) Access Grant. Upon Customer’s payment of all fees required by MatrixDS in connection with the Services (if any), MatrixDS grants Customer the right to access and use the Services ordered by Customer solely for Customer’s internal business purposes, subject to the terms set forth in this Agreement. This right is non-transferable and non-exclusive. MatrixDS reserves the right to modify or improve portions of the Services, and to change or remove features or functionality of the Services from time to time. MatrixDS will use best efforts to notify Customer of any discontinuance of the Services.
(b) Other Software. In connection with the Services, MatrixDS may provide Customer with: (i) MatrixDS’s proprietary software, (ii) software acquired or licensed by MatrixDS from a third party, or (iii) open source software (collectively, “Embedded Software”). To the extent MatrixDS provides Customer any Embedded Software, MatrixDS grants to Customer a limited, revocable, non-exclusive, non-transferable and non-sublicensable license to install, access, modify, and use such Embedded Software solely in connection with Customer’s access and use of the Services for its own internal business purposes in accordance with this Agreement. Customer will promptly uninstall and destroy all copies of such Embedded Software at the end of the applicable Subscription Term (as defined below) for the Services, upon termination of the Agreement, or upon MatrixDS’s request, whichever is sooner.
(c) Necessary Equipment. Other than as may be provided by MatrixDS in its discretion, Customer will be solely responsible, at Customer’s expense, for acquiring, installing, and maintaining all connectivity equipment, hardware, software, and other equipment as may be necessary to connect to, access and use the Services. Customer will comply with MatrixDS’s then-current minimum hardware, equipment, and infrastructure requirements for access to and use of the Services that may be disclosed to Customer by MatrixDS.
(d) General Restrictions on Use. In no event will Customer: (i) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or underlying trade secrets, ideas, or algorithms of any of the software comprising any part of the Services not already disclosed by MatrixDS in providing the Services (including, without limitation, any Embedded Software); (ii) lease, distribute, license, sell or otherwise commercially exploit any of the Services or make the Services available to a third party other than as contemplated in this Agreement, including but not limited to using the Services for timesharing, service bureau, or other similar purposes; (iii) use the Services on behalf of any third parties; (iv) tamper with other customer accounts of MatrixDS; (v) attempt to gain unauthorized access to the Services or its related systems or networks; (vi) create “links” to or from the Services, or “frame” or “mirror” any content forming part of the Services; (vii) access or use the Service for the purpose of developing a competing product or service; or (viii) permit anyone else, to engage, directly or indirectly, in any of the activities described in the foregoing subparts (i) through (vii). Unless otherwise agreed in writing by MatrixDS, all the limitations and restrictions on use of the Services in this Agreement will also apply to any Embedded Software and documentation that is part of or provided through the Services (together with the Services and Confidential Information (as defined below), collectively, the “MatrixDS Materials”). MatrixDS may restrict or prohibit use of or access to the Services if Customer fails to make payment of any applicable fees when due or MatrixDS reasonably suspects that any use or access of the Services is or may be in breach of this Agreement.
(e) Embedded Software Restrictions. The licenses in Section 1.1(a) and Section 1.1(b) as they relate to any Embedded Software are further subject to any restrictions and limitations specified in the terms and conditions and related policies displayed with or referenced in any such Embedded Software. Customer’s use of Embedded Software will be governed by the license terms presented to Customer in connection with Customer’s use of the Embedded Software, and Customer will comply with all such license terms presented to Customer in connection with Customer’s use of the Embedded Software. If Customer breaches any term of an Embedded Software license, such breach will be deemed an incurable material breach of this Agreement and MatrixDS may immediately terminate this Agreement with or without notice to Customer. Customer acknowledges and agrees that MatrixDS assumes no responsibility or liability for Customer’s use of any Embedded Software.
(f) Customer Obligations. Customer will: (i) provide MatrixDS with all information and assistance required to provide the Services and enable Customer’s use of the Services; (ii) immediately notify MatrixDS of any unauthorized use, copying, distribution, or other suspected security breach in connection with the Services; (iii) not send to MatrixDS or otherwise use any data, information, materials or other content (“Customer Content”) in connection with the Services or this Agreement that (a) is illegal, immoral, obscene, threatening, libelous, otherwise unlawful or tortious, (b) is otherwise protected by any intellectual property or proprietary right of any third party, (c) Customer does not own or has not procured sufficient license, right, consent and permission to copy, disclose, store, broadcast, transmit, or otherwise use in connection with the Services and this Agreement, or (d) contains any Sensitive Personal Information (as defined below); (iv) be responsible for all activity that occurs in Customer’s or its users’ accounts (and any transactions completed under Customer’s accounts will be deemed to have been lawfully completed by Customer); and (v) be responsible for ensuring that it obtains all consents, permissions, and licenses for any and all Customer Content that is owned or controlled by third parties that Customer copies, discloses, stores, transmits, broadcasts or otherwise uses in connection with the Services.
(g) Managed Services. If Customer elects in MatrixDS’s ordering portal on its website to have MatrixDS perform the Services as a managed software-as-a-service offering through Customer’s designated hosting service provider (the “Managed Services”), then (i) Customer will grant MatrixDS, and MatrixDS’s ability to provide the Managed Services will be contingent on Customer providing MatrixDS, all account access, administrative permissions, login credentials and other requirements requested by MatrixDS to provide the Managed Services, and (iii) Customer will be responsible for all costs and expenses imposed by such Customer designated hosting service provider.
(h) Support. MatrixDS is not obligated to provide any support or maintenance for the Services. If Customer has any questions regarding the Services, please contact MatrixDS.
(i) Free Trial Period. If MatrixDS’s ordering portal on its website identifies a free trial period applicable to any Services licensed under this Section 1 (“Free Trial Period”), then MatrixDS will provide access to those Services for free for the duration of that Free Trial Period. After the Free Trial Period, the license to the Services will automatically continue and renew for the duration of the Subscription Term (as defined below), unless Customer provides MatrixDS with written notice of non-renewal or the Subscription Term otherwise terminates in accordance with this Agreement. Upon renewal, Customer will pay to MatrixDS the fees for use and access to the Services as set forth in this Agreement.
(a) Fees and Expenses. Customer will pay MatrixDS the fees (if any) as set forth in MatrixDS’s ordering portal on its website when due and pay and reimburse MatrixDS all expenses (e.g., costs and expenses related to MatrixDS’s provision of the Managed Services) incurred by MatrixDS in connection with performing MatrixDS’s obligations under this Agreement. Unless otherwise agreed by the parties in writing, Customer will make all payments within 30 days of the date of MatrixDS’s invoice. Customer agrees that any billing discrepancies or disputes not brought to the attention of MatrixDS within 60 days from when such amounts were originally due will be waived and the invoiced amount will be deemed to be correct. Customer’s obligation to pay any amounts due in accordance with this Agreement will not be delayed or excused during any dispute related to this Agreement. All fees paid to MatrixDS are non-refundable.
(b) Taxes. Customer will be responsible for all sales, use, value added, withholding or other taxes or duties arising under or otherwise in connection with this Agreement, other than MatrixDS’s income taxes. If MatrixDS pays any such taxes on Customer’s behalf, Customer will promptly, but in no event more than 10 days after MatrixDS’s invoice to Customer, reimburse MatrixDS for such payment.
3. Term; Termination
(a) Term. The subscription period for the Services will be specified in MatrixDS’s ordering portal on its website, and if none is specified therein, then it will be for the length of time for which Customer has paid the applicable fees (the “Subscription Term”).
(b) Termination. Customer may terminate this Agreement at any time upon 30 days’ prior written notice to MatrixDS. MatrixDS may terminate this Agreement upon written notice if Customer materially breaches any provision of this Agreement.
(c) Suspension. MatrixDS may suspend the Services: (a) if MatrixDS considers it necessary to prevent or terminate any actual or suspected use of the Services in violation of this Agreement; or (b) upon notice to Customer if (i) Customer commits a material breach of this Agreement, (ii) MatrixDS reasonably determines that Customer’s use of the Services is in excess of the license metrics paid for by Customer in the MatrixDS’s ordering portal on its website, or (iii) if there is a threat to the security and integrity of the hosted environment for the Services. Suspension of Services will be without prejudice to any rights or liabilities accruing before or during the suspension, including Customer’s obligation to pay fees.
(d) Effect of Termination. Upon expiration or termination of this Agreement for any reason: (i) any fees, expenses and other amounts accrued and owed to MatrixDS prior to termination or expiration of this Agreement will be immediately due and payable; (ii) all Customer access to the Services and licenses granted will immediately terminate; and (iii) MatrixDS will have no obligation to maintain any Customer Content stored on behalf of Customer or to forward any Customer Content to any third party.
(e) Survival. The following Sections will survive termination of this Agreement: [the third sentence of Section 1(b), and Sections 1(d), 1(e) and 1(j) through 13].
For the purposes of this Agreement, “Confidential Information” means any information disclosed by MatrixDS to Customer or its users, or any MatrixDS information, data, software, or other materials that, under the circumstances of disclosure, would be reasonably understood to be considered confidential, including technical data, trade secrets, know-how, research, inventions, processes, designs, drawings, marketing plans, financial information, including but not limited to the MatrixDS Materials. Customer will: (i) hold in strict confidence all Confidential Information; (ii) use the Confidential Information only to perform or to exercise its rights under this Agreement; and (iii) not transfer, display, convey or otherwise disclose or make available such Confidential Information to any person or entity except to the directors, officers, employees, agents, contractors, accountants, auditors and legal and financial advisors of Customer who need to know such Confidential Information, who are under confidentiality obligations substantially similar as those set forth hereunder, and whose handling and treatment of the Confidential Information in accordance with this Agreement is Customer’s full responsibility. Customer will use at least the same degree of care to protect the Confidential Information as it uses to protect its own confidential information of like nature, but Customer will use at least reasonable care. Customer may disclose the Confidential Information in response to a valid court order, law, rule, regulation, or other governmental action provided that (x) Customer notifies MatrixDS in writing prior to disclosure of the information in order to provide MatrixDS a reasonable opportunity to obtain a protective order, and (y) Customer assists MatrixDS in any attempt to limit or prevent the disclosure of the Confidential Information. Customer will promptly notify MatrixDS in the event of any unauthorized use or disclosure of the Confidential Information. Customer agrees that MatrixDS may have no adequate remedy at law if there is a breach or threatened breach of this, and accordingly, that MatrixDS will be entitled to injunctive or other equitable relief to prevent or remedy such a breach in addition to any legal remedies available to MatrixDS. The obligations in this Agreement with respect to Confidential Information will not apply to any information that would otherwise constitute Confidential Information but that which: (i) is publicly known and made generally available in the public domain without breach of any obligation of confidentiality or restriction on disclosure; or (ii) is in the possession of Customer without breach of any obligation of confidentiality or restriction on disclosure at the time of disclosure by MatrixDS.
As between MatrixDS and Customer, MatrixDS will own all intellectual property and other rights in and to the MatrixDS Materials. Unless explicitly stated herein, nothing in this Agreement will be construed as conferring any right or license to such rights, whether by estoppel, implication or otherwise, and Customer acknowledges that it has no ownership interest in the MatrixDS Materials, or any derivatives, modifications, upgrades, updates, new versions, fixes, improvements or enhancements thereof or thereto. MatrixDS reserves all rights not expressly granted in this Agreement. Customer hereby assigns to MatrixDS any rights, title and interest, including all intellectual property rights, in any feedback, derivative works, modifications, enhancements, or improvements related to the MatrixDS Materials.
6. No Sensitive Personal Information
Notwithstanding any provision to the contrary in this Agreement, Customer acknowledges and agrees that use of the Services to transmit, process or store Sensitive Personal Information (as defined below) is unnecessary for use of the Services and therefore Customer shall be solely responsible for any such use of the Services by Customer or Customer’s employees, agents or subcontractors and MatrixDS shall bear no risk or liability for same. As used in this Agreement, “Sensitive Personal Information” shall be defined as (i) social security numbers; (ii) passport numbers or other government issued id numbers, date of birth and/or gender, except solely to the extent required by applicable regulations of the Department of Homeland Security or other government regulatory body; (iii) health or medical information; (iv) financial account information (other than payment information entered securely using MatrixDS’s online payments module); and (v) other information which a reasonable person would recognize as being highly sensitive.
7. Warranties; Disclaimer
(a) Customer Warranties. Customer represents and warrants that (i) it has the full corporate power and authority to enter into this Agreement and perform its obligations hereunder; (ii) it has the necessary rights to enter into this Agreement and perform its obligations hereunder; (iii) this Agreement is a binding obligation upon it and, when executed by both parties, is enforceable in accordance with its terms; (iv) it will comply with all applicable laws, rules and regulations in the course of performing its obligations and exercising its rights under this Agreement; and (v) any Customer Content provided to MatrixDS or otherwise used by either party in connection with this Agreement will not infringe, misappropriate or otherwise violate any right of any third party.
(b) Disclaimer. ALL SERVICES (INCLUDING MANAGED SERVICES), SOFTWARE AND OTHER MatrixDS MATERIALS PROVIDED BY MatrixDS ARE PROVIDED TO CUSTOMER “AS-IS” AND ON AN “AS AVAILABLE” BASIS, AND MatrixDS MAKES NO, AND DISCLAIMS ALL, REPRESENTATIONS AND WARRANTIES, AND CONDITIONS, ORAL OR WRITTEN, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. MatrixDS DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR MANAGED SERVICES WILL BE DELIVERED FREE OF ANY INTERRUPTIONS, DELAYS, OMISSIONS OR ERRORS OR IN A SECURE MANNER. THE SERVICES (INCLUDING MANAGED SERVICES) MAY BE SUBJECT TO LIMITATIONS, DELAY AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. MatrixDS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY LOSS OF DATA OR DAMAGES RESULTING THEREFROM. THE SERVICES (INCLUDING MANAGED SERVICES) MAY CONTAIN INDEPENDENT THIRD PARTY PRODUCTS AND RELY ON THEM TO PERFORM CERTAIN FUNCTIONALITY IN CONNECTION WITH THE SERVICES. MatrixDS MAKES NO WARRANTY AS TO THE OPERATION OF ANY THIRD PARTY PRODUCTS OR THE ACCURACY OF ANY THIRD PARTY INFORMATION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MatrixDS OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE ANY WARRANTY.
Customer will defend, indemnify, and hold harmless MatrixDS, its affiliates, subsidiaries, and parent companies, together with each of their respective officers, directors, members, employees, agents, contractors, representatives, successors and assigns (each, a “MatrixDS Indemnitee”) against any and all losses, damages, liabilities, judgments, awards, penalties, interest, fines, costs, fees or expenses of whatever kind, including reasonable attorneys’ fees, professional fees, the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, which are incurred by any MatrixDS Indemnitee arising out of any third party claim, demand, allegation, investigation, or other proceeding made in connection with or otherwise related to Customer’s breach of any representation, warranty or covenant in this Agreement.
9. LIMITATION OF LIABILITY
(a) Customer Responsibility. The failure or delay of MatrixDS in its performance of its obligations under the Agreement is excused to the extent such failure is a result of: (i) any act or omission of Customer or any entity or individual acting on Customer’s behalf, including Customer’s failure to perform (or cause to be performed) its obligations hereunder; (ii) unavailability of Customer’s materials or systems, including those provided by third parties; (iii) the reliance of MatrixDS on instructions, authorizations, approvals or other information from Customer or its representative(s); or (iv) any act or omission of a third party not under the control of MatrixDS. MatrixDS will use commercially reasonable efforts to provide the Services notwithstanding such circumstances, and Customer will reimburse MatrixDS for any additional charges and expenses incurred as a result thereof.
(b) Limitation and Disclaimer. IN NO EVENT WILL MatrixDS (OR ITS SUPPLIERS OR AFFILIATES) BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, LOST PROFIT OR OTHER SIMILAR DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MatrixDS’S TOTAL AGGREGATE LIABILITY FOR DAMAGES OF ANY NATURE UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, EXCEED THE AMOUNT PAID BY CUSTOMER TO MatrixDS UNDER THE APPLICABLE ORDER GIVING RISE TO THE ACTION OR CLAIM. IN NO EVENT WILL MatrixDS HAVE ANY LIABILITY ARISING OUT ANY OF CUSTOMER CONTENT PROVIDED TO MatrixDS IN CONNECTION WITH THE SERVICES HEREUNDER. THE FOREGOING LIMITATIONS OF LIABILITY DESCRIBED IN THE SUBSECTION (B) WILL NOT APPLY TO CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, OR BREACHES OF CONFIDENTIALITY.
10. Mandatory Arbitration
The parties consent to arbitrate any claim, dispute or controversy (each, a “Claim”) arising out of relating to this Agreement or the relationships among the parties hereto through binding arbitration administered by the American Arbitration Association (“AAA”). The parties will notify each other in writing of any Claim within 30 days of when it arises. The parties further agree: (i) to attempt informal resolution of the Claim prior to any demand for arbitration; (ii) that any arbitration will occur in San Francisco County, California; (iii) that arbitration will be conducted confidentially by a single arbitrator in accordance with the Rules of the American Arbitration Association; and (iv) that the state or federal courts in San Francisco County, California have exclusive jurisdiction over any appeals of an arbitration award. The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this Agreement including any claim that all or any part of the Agreement is void or voidable. However, the preceding sentence will not apply to the Section entitled “Class Action Waiver” immediately below. Any dispute between the parties will be governed by this Agreement and the laws of the State of California and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction.
11. CLASS ACTION WAIVER
Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. The arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction in San Francisco County, California, and not by an arbitrator. THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE THEIR CASE AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, THEY UNDERSTAND AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY, THROUGH ARBITRATION.
12. Export Controls
Customer will comply with all export and re-export restrictions and regulations imposed by the government of the United States and other relevant countries or regions (“Export Restrictions”). Customer will not transfer, directly or indirectly, any restricted software or technical data received hereunder or the direct product of such data, to any country or region identified as an embargoed destination or country in the Export Restrictions, unless prior written authorization is obtained from MatrixDS and each appropriate United States or other government agencies.
This Agreement sets forth the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and, supersedes and merges all prior oral and written agreements, discussions and understandings between the parties with respect to the subject matter hereof. Any amendment to this Agreement must be in writing and signed by the authorized representatives of the parties. Except for payment obligations, each party will be excused from performance of its obligations under this Agreement if such a failure to perform results from acts beyond its reasonable control. Customer may not assign this Agreement, by merger (including operation of law), transfer of equity, other change of control or otherwise, without MatrixDS’s prior written consent, and any attempt to do so is null, void and of no effect. All notices required under this Agreement will be in writing and sent by express mail or other overnight delivery service providing receipt of delivery to the address set forth (i) with respect to MatrixDS, and (ii) with respect to Customer, at the address Customer provides to MatrixDS via MatrixDS’s ordering portal on its website, with notice effective upon delivery in each case. The parties hereto are independent contractors. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary, or joint venture relationship between the parties. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought. Any delay or forbearance by either party in exercising any right hereunder will not be deemed a waiver of that right. If any portion of this Agreement is held invalid, illegal or unenforceable, such determination will not impair the enforceability of the remaining terms and provisions herein.