Mavatar’s Licence Agreement for Clients
SOFTWARE AS A SERVICE(SAAS)/PLATFORM AS A SERVICE (PAAS) LICENSE AGREEMENT
This SaaS License Agreement (the “Agreement”) is made between you (both the individual using the Services offered under this Agreement and any legal entity on whose behalf such individual is acting) (“You” or “Your” or “Customer”) on the one hand and MAVATAR TECHNOLOGIES INC., on the other hand, on behalf of itself and its affiliates (“MAVATAR” or the “Company”). MAVATAR and Customer may be referred to in this Agreement, individually, as “Party” and, collectively, as “Parties.”
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE ACCEPTING, AND/OR BEFORE REGISTERING FOR THE SERVICES AND/OR THE SYSTEM, AS APPLICABLE. THIS SYSTEM IS COPYRIGHTED AND LICENSED (NOT SOLD). TAKING ANY STEP TO SETUP OR INSTALL THE SYSTEM CONSTITUTES YOUR CONSENT TO AND ACCEPTANCE OF THIS AGREEMENT. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF YOU SHALL BE CONSTRUED AS INFERENCE TO THE CONTRARY. THE REGISTRATION BY YOU TO THE SERVICES (DEFINED BELOW) IS EXPRESSLY MADE CONDITIONAL ON YOUR CONSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST IMMEDIATELY CEASE ALL USE OF THE SYSTEM.
- “Service(s)” means MAVATAR’s online service known as “mcart.io”, as described in the Website (at: mavatar.com and mcart.io) (the “Website”), developed, operated, and maintained by MAVATAR, accessible via the Website or any other designated partner website, service names, domains or IP address, and/or any ancillary online or offline products and services provided to Customer by MAVATAR, to which Customer is being granted access under this Agreement . The Service includes the Customer’s ability to store the Customer Data (as defined below) on the Amazon Web Services, Microsoft Azure or on the Google Cloud Platform (collectively, the “Cloud Platforms”), and/or to migrate the Customer Data from one Cloud Platform to another, subject to terms of this Agreement and the payment of the applicable Fees. MAVATAR reserves the right to add, change, remove and/or modify the Services, including modifications to functionality, presentation and companion products after providing prior notification on the Website and the Service. To the extent MAVATAR includes third party services in the Services, MAVATAR will have no responsibility or liability with respect to such third party services.
- “Software” means the software code used as part of the Service, both in connection with the Services rendered under this Agreement, together with all other related and accompanying documentation (the “Documentation”), provided by MAVATAR via the Service, and any update or a new release of the Software.
- “System” means the Software, the Services and all associated processes.
- Service. Subject to the terms and conditions of this Agreement and payment of applicable Fees, MAVATAR hereby grants Customer, and Customer hereby accepts, a non-exclusive, non-transferable and fully revocable right to use the System subject to registration by Customer to the Website.
- Use of System. The System is protected by intellectual property laws and international treaty provisions. The System is licensed to Customer solely for Customer’s own internal use and for Customer’s own operations. Except as explicitly permitted herein, without the prior written consent of MAVATAR, Customer will not (nor allow any third party to) directly or indirectly: (a) allow others to use the System, or use the System for the benefit of third parties; (b) except and only to the extent established by applicable law, attempt to decipher, reverse translate, decompile, disassemble or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms or file formats or programming or interoperability interfaces of the System by any means whatsoever; (c) develop methods to enable unauthorized parties to use the System or develop any other product containing any of the concepts and ideas contained in the System; (d) modify the System or create a derivative work of any portion of the System; (e) remove any copyright or other proprietary notices from the System; (f) test the System or use the System in connection with any benchmark tests, evaluation or any other tests of which the results are designated or likely to be published in any form or media or otherwise made available to the public; (g) circumvent, disable or otherwise interfere with security-related features of the System or features that enforce limitations on its use; (h) transmit any malicious code, viruses, worms or other items of a destructive or deceptive nature into or in connection with the System. (i) rent, lend, lease, sub-license, assign or transfer the System and/or Customer’s rights to the System; (j) make copies of the System or any portions thereof; (k) use the System in a manner that is not in compliance with the Documentation and with MAVATAR’s specific instructions; (l) copy or modify, adapt or translate into any language the Documentation, or create derivative works based on the Documentation; (m) violate, or encourage the violation of the legal rights of MAVATAR, its suppliers or third parties; (n) use the System for any unlawful, invasive, infringing, defamatory or fraudulent purpose; and/or (o) access the System in order to build a competitive solution or to assist any third party to build a competitive solution (p) use the System for any purpose or in any manner involving ‘Protected Health Information’ under HIPAA if Customer is (or becomes) a ‘Covered Entity’ or ‘Business Associate’ under HIPAA. Customer shall comply with all applicable laws, rules and regulations in connection with Customer’s use of the Services.
- Title and Intellectual Property. Customer acknowledges and agrees that use of the System, is subject to the terms and conditions of this Agreement and that the Software and the Documentation, including any revisions, corrections, modifications, enhancements and/or upgrades thereto are MAVATAR’s property protected under any applicable laws and treaties. Customer further acknowledges and agrees that all right, title and interests in and to the System, including associated intellectual property rights (including but not limited to, copyrights, trade secrets, trademarks, etc.), evidenced by or embodied in and/or attached/connected/related to the System are and shall remain with MAVATAR. This Agreement does not convey to Customer an interest in or to the System, but only a limited right of use of the System, revocable in accordance with the terms and conditions of this Agreement. Nothing in this Agreement constitutes a waiver of MAVATAR’s intellectual Property rights under applicable law.
- Third Party Components. The System is based on software developed and owned by Company and/or its licensors, and may use or include third party software, files and components that are subject to open source and third party license terms (“Third Party Components”). Customer’s right to use such Third Party Components as part of, or in connection with, the System is subject to any applicable acknowledgements and license terms attached to such Third Party Components, contained therein or related thereto. If there is a conflict between the licensing terms of such Third Party Components and this Agreement, the licensing terms of the Third Party Components shall prevail in connection with the related Third Party Components. Such Third Party Components are provided on an “AS IS” basis without any warranty of any kind and shall be subject to any and all limitations and conditions required by such third parties. Under no circumstances shall the System or any portion thereof (except for the Third Party Components contained therein) be deemed to be “open source” or “publicly available” software. A list of Third Party Components is available in the System or its documentation (BY CONTACTING firstname.lastname@example.org) and will be updated from time to time. The licenses of certain Third Party Components may require the provision of the source code of these Third Party Components. With respect to any licenses of Third Party Components that require the provision of the open source code of these Components, the Company will provide the Customer and any third party, during a period set forth by each such license, for a charge of no more than Company’s cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, on a medium customarily used for software interchange. For that purpose, the Customer should contact the Company at: email@example.com.
- Confidentiality. Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, whether written or oral, and any other information that a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party’s Confidential Information from disclosure to a third party. Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted under this Agreement or by applicable law. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party. Customer agrees that Company may identify Customer as a user of the System and use Customer’s trademark and/or logo (i) in sales presentations, promotional/marketing materials, and press releases, and (ii) in order to develop a brief customer profile for use by Company on Company’s website for promotional purposes. Confidential Information does not include information that is (a) previously known to the receiving Party, free from any obligation to keep it confidential, (b) publicly disclosed by the disclosing Party either prior to or subsequent to the receipt by the receiving Party of such information, (c) independently developed by the receiving Party without any access to Confidential Information, or (d) rightfully obtained from a third party lawfully in possession of Confidential Information who is not bound by confidentiality obligations to the disclosing Party. The receiving Party may disclose Confidential Information if the receiving Party is required to do so under applicable law, rule or order; provided that the receiving Party, where reasonably practicable and to the extent legally permissible, provides the disclosing Party with prior written notice of the required disclosure.
- Fees. Customer shall pay MAVATAR those fees negotiated or set forth in the Website, Registration Form or Service Orders made through a third party or partner (collectively, the “Service Order”) as applicable to Customer’s subscription for the System (the “Fees”). Payment of Fees may be performed by payment through third parties which shall issue the invoice in connection with such Fee. The Fees shall be due and payable in advance and according to the terms set forth in Customer’s Service Order, and is not refundable. In the event that Customer requests to migrate Customer’s data between the Cloud Platforms (“Platform Migration”), Customer hereby acknowledges that in addition to the Fees, overlapping payments shall apply in connection therewith, (i.e. for a duration of up to a full monthly payment cycle, overlapping charges may apply and shall be borne solely by customer). MAVATAR reserves the right to modify the Fees at any time, upon 30 days prior written notice to Customer, which notice may be provided by e-mail or at the Website; such new prices shall not apply for subscription for the System which has already been completed, but shall apply to any subscription completed after the effective date of change of the Fees. Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and such taxes, levies and duties shall be added to the Fees. In addition to other remedies available to it, MAVATAR expressly reserves the right to suspend or terminate the Services and notify Customer of such termination or suspension, in the event Customer fails to pay the Fees on a timely manner. Customer further agrees and acknowledges that MAVATAR has no obligation to retain Customer’s Customer Data and platform's proceeds and that it may be deleted from the Service if Customer has failed to pay any outstanding Fees when due.
- Term and Termination. This Agreement is effective commencing on the date of the Service Order, or the date upon which Customer has subscribed through the Website to the Service (the “Effective Date”) and until terminated by MAVATAR upon thirty (30) days prior written notice or, in the event Customer has elected to use the Services on a trial basis, if applicable and if available by the Company as detailed on the Website, upon expiration of such trial period if Customer has not enrolled in the monthly subscription (the “Term”).
Upon any violation by Customer of any of the provisions of this Agreement, which has not been remedied within seven (7) days after Customer has been given written notice of the violation, which may be made via email, rights to use the System shall automatically terminate. Customer may terminate this Agreement at any time upon thirty (30) days prior written notice to MAVATAR by email at the following email address firstname.lastname@example.org; provided, however, that such termination by Customer shall not relieve Customer from Customer’s obligation to pay any Fees for the duration of the term to which Customer has subscribed for. Upon termination or expiration of this Agreement: (i) Company will cease from providing the Services hereunder, the license granted to Customer under this Agreement shall expire, and Customer shall discontinue all further use of the System; (ii) Customer shall immediately permanently delete all copies of the Documentation in Customer’s or any of its representatives’ possession or control; (iii) Company shall immediately return and /or permanently delete (as instructed by Customer) and certify to Customer, within fourteen (14) business days, that it has done so, all Customer Data provided by Customer pursuant to this Agreement, provided that the Company will retain any Analytics Information which is derived from the use of the System and from the provision of the Services; (iv) any sums paid by Customer until the date of termination are non-refundable, and Customer shall not be relieved of its duty to discharge in full all due sums owed by Customer to Company under this Agreement until the date of termination or expiration hereof, which sums shall become immediately due and payable on the date of termination or expiration the Agreement. Upon termination or expiration of this Agreement, Customer will lose all access to any Customer Data that Company may be storing in order to make the System available to Customer. Customer shall be responsible to download its Customer Data prior to termination of this Agreement. Termination of this Agreement shall not limit Company from pursuing any other remedies available to it under the applicable law. The provisions of this Agreement that, by their nature and content, must survive any expiration or termination of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive, including without limitation, the provisions regarding Title and Intellectual Property (Section 4), Third Party Components (Section 5), Confidentiality (Section 6), Fees (Section 8), Limitation on Warranty (Section 11). Limitation of Liability (Section 12), Indemnification (Section 13), and Miscellaneous (Section 16).
- Compensation & SLA for Down Time Events. Service Level Agreement (SLA) is negotiated individually with each Customer, and Compensation will be addressed in the SLA.
- Limitation on Warranty. MAVATAR warrants for Customer’s benefit alone, that the System, if operated as specifically directed by MAVATAR, shall operate substantially in accordance with the functional specifications in the Documentation and as specifically provided by MAVATAR. MAVATAR does not warrant however that the use of the System will be uninterrupted or that use of the System will be error free or secure. MAVATAR’s sole liability and Customer’s sole and exclusive remedy for any breach of this warranty by MAVATAR shall be according the the Service Level Agreement signed with the Customer as set forth above and the repair of the defect that does not meet this limited warranty, within reasonable time. The foregoing warranty applies only to failures in operation of the System that are reproducible in standalone form and does not apply (i) if the defect is caused by faulty maintenance, installation or set-up, by alterations undertaken without MAVATAR’s consent or by faulty repairs; (ii) if the defect would have been avoided by the use of a current update of the System that MAVATAR makes generally available to its customers; (iii) if the defect is caused by the combination, operation or use of the System with software, hardware or other materials not licensed hereunder and not conforming to MAVATAR’s specifications set forth in the Documentation; (iv) if the System is otherwise operated in violation of this Agreement or other than in accordance with the Documentation; (v) if the defect is caused due to problems inherent to the use of the internet and/or electronic communications.
EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE, THE LICENSE TO USE THE SYSTEM AS SET FORTH HEREIN, IS PROVIDED FOR THE USE OF THE SYSTEM “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, AND MAVATAR DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; NO LICENSOR, DEALER, DISTRIBUTOR, RESELLER, AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY. MAVATAR SHALL NOT BE RESPONSIBLE FOR: (I) UNAUTHORIZED ACCESS TO, ALTERATION AND/OR LOSS TO THE CUSTOMER DATA, INCLUDING IN CONNECTION WITH A PLATFORM MIGRATION EXCEPT TO THE EXTENT THAT SUCH ACCESS OR ALTERATION IS DUE TO MAVATAR’S WILLFUL MISCONDUCT; AND (II) ANY DAMAGE OR LOSS INCURRED TO CUSTOMER, CUSTOMER’S ORGANIZATION OR ANY THIRD PARTY AS A RESULT OF OR IN CONNECTION WITH THE USE OF MAVATAR PRODUCTS.
- Limitation of Liability. CUSTOMER HEREBY AGREES THAT IN NO EVENT SHALL MAVATAR OR ITS SHAREHOLDERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTIONS, LOSS OF BUSINESS INFORMATION OR DATA, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE SALE OF, USE OF OR INABILITY TO USE THE SYSTEM, EVEN IF MAVATAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY REGARDLESS OF THE FAILURE OF ANY ESSENTIAL PURPOSE. THIS LIMITATION IS AN ESSENTIAL PART OF THE AGREEMENT BETWEEN CUSTOMER AND MAVATAR. IN NO EVENT WILL MAVATAR BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT MAVATAR ACTUALLY RECEIVED FROM CUSTOMER FOR THE SPECIFIC LICENSE SUBSCRIBED FOR DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING, WHICH IS GIVING RISE TO THE LIABILITY. CUSTOMER ACKNOWLEDGES THAT THIS LIMITATION REPRESENTS A REASONABLE ALLOCATION OF RISK, AND THAT MAVATAR WOULD NOT PROVIDE THE SYSTEM EXCEPT UNDER THE TERMS OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER.
- Indemnification. The Company acknowledges and agrees to defend, at its expense, any third party action or suit brought against the Customer alleging that the System infringes intellectual property rights held by any third party (“IP Infringement Claim“), and the Company will pay any damages awarded in final judgment against the Customer that are attributable to any such claim; provided that (i) the Customer notifies the Company promptly in writing of such claim; and (ii) the Customer will grant the Company authority to handle the defense or settlement of any such claim, suit or proceeding and will provide the Company with all reasonable information and assistance, at Company’s expense. The Company will not be bound by any settlement that the Customer enter into without the Company’s prior written consent. If the System becomes, or in the Company’s opinion is likely to become, the subject of an IP Infringement Claim, then the Company may, at its sole option and expense (a) procure for the Customer the right to continue using the System; (b) replace or modify the System to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot accomplished despite the Company’s reasonable efforts, then the Company may discontinue providing the Services and grant the Customer credit for the price of the Services already paid by Customer with respect to the period following such event. Notwithstanding the foregoing, the Company shall have no responsibility for IP Infringement Claim resulting from or based on: (i) modifications to the System made by a party other than the Company or its designee; (ii) the Customer’s failure to use updated or modified System provided by the Company specifically to avoid infringement; or (iii) combination or use of the System with equipment, devices or software not supplied or authorized by the Company or not in accordance with the Company’s instructions. THE FOREGOING TERMS STATE THE COMPANY’S SOLE AND EXCLUSIVE LIABILITY AND THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION. The Customer agrees to defend, indemnify and hold harmless the Company, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney’s fees) arising from: (i) the Customer’s unauthorized use of the System; (ii) the Customer’s violation of any term of this Agreement (including without limitation any warranties provided herein); and/or (iii) a third party claim, suit or proceeding that use of the Customer Data within the scope of this Agreement infringes any privacy right of a third party.
- Export Control. Customer shall comply with all applicable government trade and export control laws and regulations with respect to the System. Customer agree that the System will not be transferred or exported into any country or used in any manner prohibited by any applicable laws in any jurisdiction.
- Injunctive Relief. Each Party acknowledges that if it breaches any obligations or undertakings contained in this Agreement, the other Party may suffer immediate and irreparable harm for which there may be no adequate remedy at law, and in addition to all other remedies, the injured Party shall be entitled to specific performance and injunctive relief and any other appropriate equitable remedies to prevent a threatened breach or to correct an actual breach and to enforce this Agreement. Unless otherwise set forth in this Agreement, such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity.
- Miscellaneous. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the Agreement, and the remainder of the provisions of this Agreement shall remain in full force and effect. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. MAVATAR shall not be liable for failing or delaying performance of its obligations and/or failure of operation of the System and/or failure to grant the Services resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles and without regard to the United Nations Convention on Contracts for the International Sale of Good. Any legal action or proceeding relating to this Agreement shall be instituted in any state or federal court in the State of Delaware, USA. The Parties agree to submit to the jurisdiction of, and agree that venue is proper in, the aforesaid courts in any such legal action or proceeding. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. This Agreement and any schedule(s) thereto including the Service Order, sets the entire understanding and agreement between Customer and MAVATAR, it supersedes any prior proposal, representation and understanding concerning the System, and may be amended by MAVATAR at its discretion from time to time. If Customer is a corporation, partnership or similar entity, then the license to use the System granted hereunder is deemed to be accepted by a person authorized to sign for and bind the entity. Except as expressly permitted hereunder, any attempt by Customer to sublicense, assign or transfer any of the rights, duties or obligations hereunder is void ab initio. This Agreement shall be binding upon and inure to the benefit of each party’s heirs and legal representatives. Neither party may assign or subcontract its rights under this Agreement without the prior written consent of the other party; provided, however, that each Party may assign this Agreement to (A) any legal entity or company which either party directly or indirectly (i) owns or controls, (ii) is owned or controlled by or (iii) is under common ownership or control with, or (B) a successor in a merger, acquisition or other consolidation including, without limitation, the sale of all or substantially all of its stock or assets, or business to which this Agreement applies.