Last Updated: April 5, 2021
This Agreement is by and between you (the “Customer,” “you,” or “your”) and Meroxa, Inc. a Delaware corporation with its principle place of business at 2261 Market Street #4146 San Francisco, CA 94541 (“Meroxa,” “we,” “our,” or “us”); each a “Party” and collectively the “Parties”. This Agreement is effective upon Acceptance by Customer (the “Effective Date”). The individual accepting this Agreement on behalf of your business entity, organization, or company, represents and warrants that they have authority to bind you to this Agreement and you agree to be bound by this Agreement, in which case the terms “you” or “your” refer to such entity. The Parties agree as follows:
(a) “Authorized Users” means Company’s personnel accessing and using the Service on Company’s behalf.
(b) “Event Process” means each action processed on each record in any data interaction through the Service to or from source or destination connectors and endpoints, and includes, with respect to each applicable record, ingress, transformation(s), and egress, such that a single record set processed across the Service may account for multiple Events Processed. For more information on how Events Processed are calculated, see our "Frequently Asked Questions".
(c) “Service” means those modules and features of Meroxa’s software-as-a-service platform as made available by Meroxa from time to time through one or more web sites or network accessible properties or APIs owned or controlled by or on behalf of Meroxa, including associated documentation made available to Customer in written form or online.
(d) “Service Order” means an order for Services that: (i) is either (1) submitted online through Meroxa’s standard subscription process, or (2) an offline order form or other ordering document signed by the Parties; (ii) that specifies the Subscription Period and Subscription Level (each defined below), and which may contain additional relevant terms such as the number of Complimentary EPs, pricing, and/or limitations on the type and number of Authorized Users.
(e) “System” means Customer’s servers and other information technology systems and equipment.
(a) Right to Access and Use. Subject to Customer’s full and ongoing compliance with the terms and conditions of this Agreement, including without limitation the payment of all applicable fees, Meroxa grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right, during the applicable Subscription Term, to allow its Authorized Users to access and use the Service as expressly identified and described in a Service Order, solely for Customer’s internal business purposes. Unless otherwise provided in the applicable Service Order, upon expiration of the Service period provided in a Service Order, or if none is specified, one (1) year (the “Subscription Period”), the Service Order will automatically renew for subsequent terms of the same length as the Subscription Period, unless a Party provides written notice of nonrenewal at least 30 days prior to the end of the then current term (collectively, the “Subscription Term”).
(b) API. If a Service Order indicates that Customer will receive access to an application programming interface, or if Meroxa provides credentials to Customer that enable Customer to access a Meroxa provided application programming interface in connection with the Service (each, an “API”), then Meroxa hereby grants Customer a limited, revocable, non-exclusive, non-transferable and non-sublicensable right and license under Meroxa’s rights in that API to access and use such API solely: (i) for the Subscription Term; and (ii) in accordance with all applicable documentation and restrictions set forth in this Agreement (including the applicable Service Order). Without limiting the foregoing, Customer will comply with any volume or other usage-based restrictions described in a Service Order or documentation.
(c) Technical Support Services. For so long as Customer is current with its payment of Fees, Meroxa will provide Customer, during the Term, phone and email support in accordance with the Meroxa’s website. To obtain such support, Customer will need to (i) document and promptly report all errors or malfunctions; and (ii) take all steps reasonably necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after such procedures have been received from Meroxa. If Customer is unable to access or use the Service hereunder as a result of an error occurring on System, or if access to such System is necessary to otherwise rectify an error occurring on the Service, Customer agrees to provide Meroxa with access to its System as may be necessary to duplicate and resolve such errors.
(d) Customer Data. Meroxa acknowledges that, as between Meroxa and Customer, Customer retains all right, title, and interest, including all intellectual property rights, in and to (i) any data or information that Customer uploads or inputs into the Service or otherwise makes available to Meroxa, including in connection with Customer’s use of a Service; and (ii) data that is generated and made available to Customer by the Service through use of the data described in part (i) above (2(d)(i) and 2(d)(ii) collectively, “Customer Data”). Customer hereby grants Meroxa and its successors, a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable license to use, process, transmit, store, and disclose the Customer Data: (i) during the Term, for the purpose of exercising Meroxa’s rights and performing its obligations under this Agreement; and (ii) in perpetuity, to use the know-how and analytical results resulting therefrom (including any and all machine learning, trained models, and other similar materials) in connection with the enhancement, improvement, and provision of the Service and derivatives thereof (including Meroxa’s Technology and Derivatives), provided that the foregoing is not a license to provide or disclose any Customer Data to any third party in raw or disaggregated form, or to identify Customer as the source of any such Customer Data or analytical results.
(e) Data Access. Subject to Customer’s full compliance with the terms, conditions and policies of its database provider, Customer will provide Meroxa with database credentials necessary for Meroxa to provide the Service (“Customer Credentials”). Customer will at its own expense ensure that Meroxa is authorized by Customer’s database provider to utilize Customer Credentials. Customer acknowledges and agrees that Customer is liable to its database provider for Meroxa’s use of Customer Credentials.
(f) Customer Responsibilities. Customer is responsible for maintaining the confidentiality and security of any APIs provided to Customer and for all activities that occur under Customer’s user accounts. Customer will: (i) obtain and maintain all equipment and any ancillary services needed to connect to, access or otherwise use the Service and ensuring that its equipment meets the minimum system guidelines set forth in the applicable documentation; (ii) provide Meroxa sufficient access to its Systems as may be necessary to provide the Service (including access and use rights to System APIs); (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Service; (iv) subject to any limitations under applicable law, notify Meroxa promptly of any such unauthorized access or use of the Service; (v) use and provide access to the Service only in accordance with this Agreement and applicable law; and (vi) have sole responsibility for the accuracy, quality, integrity, reliability, and appropriateness of all Customer Data provided to Meroxa hereunder, and for ensuring that all necessary rights, notices, and permissions have been obtained the provision of such Customer Data to Meroxa for the uses provided herein.
(g) Mutual Responsibilities. During the Term and subject to the terms of this Agreement, the Parties agree that (i) all transactions executed through the Service shall be executed through industry standard secure connections and in accordance with applicable law, (ii) they do not anticipate or intend that Meroxa will create, receive, maintain, or transmit any unencrypted personal data, personal information or personally identifiable information through the Service, and (iii) if Customer discovers that it has inadvertently transmitted other personal data, personal information or personally identifiable information to Meroxa, it will promptly notify Meroxa of such transmission, and use its best efforts to remove such information from the Service and ensure that future transmissions of such data are prevented.
(h) Service Guidelines. Customer will use the Service solely as contemplated by this Agreement and further agrees not to (and not to attempt to or assist or permit any third party to): (i) create more than one account per organization that exploits the benefits of the Complimentary EPs; (ii) submit or transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs to or through the Service or transmit unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar or obscene material or material harmful to minors, or collect data regarding others without their consent; (iii) interfere with or disrupt the integrity or performance of the Service or the content, data, or information contained therein; (iv) attempt to gain or permit unauthorized access or access to a third party (including customers or vendors) to the Service, computer systems or networks related to the Service; (v) disassemble, reverse engineer, or decompile any of the Technology (defined below), or attempt to do so; (vi) "frame", "mirror", or otherwise embed or incorporate any of the Service or any content, data, or information contained therein (other than Customer Data) in any Customer or third party system or service; (vii) access the Service to build a competitive product or service, reproduce features of the Service, or resell the Service; or (viii) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party. Meroxa has the right to terminate this Agreement at any time for Customer’s failure to comply with this Section 2(h).
(i) Proprietary Rights. Customer acknowledges that in providing the Service, Meroxa utilizes (i) the Meroxa name, the Meroxa logo, Meroxa’s websites and related domain names, the product names associated with the Service and other trademarks; (ii) certain audio and visual information, documents, software and other works of authorship; (iii) analytical, predictive, and optimization models, frameworks, rules, algorithms, and similar systems, data mining and other algorithms, and any other technology, software, hardware, products, processes, algorithms, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively “Technology”). As between Customer and Meroxa, Meroxa reserves all rights, title and interest, including all intellectual property rights in and to, the Technology and the Service and any associated Service Data, together with any and all modifications, customizations or improvements to any of the foregoing, including without limitation, any AI or machine learning models, algorithms, neural nets, and similar technologies that may be enhanced, expanded, developed, or otherwise improved through the provision of the Services and through the processing and use of Customer Data (“Derivatives”). Other than as expressly set forth in this Agreement, no license or other rights in the Technology or Derivatives are granted to Customer.As used herein, “Service Data” means information, content, data, and materials generated by Meroxa or obtained directly by Meroxa from third party sources, and used in connection with providing the Service. Service Data includes, without limitation, aggregate usage data collected or obtained in connection with the use of the Service hereunder.
(a) Payment Processing. All payments are facilitated through “Stripe” (www.stripe.com), a third-party payment processing service. Customer must agree and is subject to the “Stripe Connected Account Agreement” (https://stripe.com/us/connect-account/legal), which includes the “Stripe Terms of Service” (https://stripe.com/us/legal). By agreeing to this Agreement, or otherwise using the Service, you expressly consent to the Stripe Connected Account Agreement and Stripe Terms of Service, that may be modified by Stripe from time to time. As a condition of enabling payment processing services through Stripe, you agree to provide Meroxa with accurate and complete information about you and your business, including up to date credit card information, and you authorize Meroxa to share any transaction information necessary for the use of the payment processing services provided by Stripe. Meroxa may replace its third-party payment processing services with notice to you.
(b) Fees. Each month, Customer will be granted a number of complimentary Event Processes on the Service at no charge (“Complimentary EPs”). The number of monthly Complimentary EPs will be specified in the applicable Service Order at the time you initiate your subscription, and may be changed by Meroxa on a going forward basis upon written notice (which may include posting the revised Complimentary EPs number to the Service) unless your order specifically states that your allotment of Complimentary EPs is fixed through the initial Subscription Term in which case changes to the Complimentary EPs will become effective upon the renewal of your Subscription Term. For each Event Process consumed by Customer beyond the Complimentary EPs, Customer must pay all applicable usage fees for the Service (collectively, the “Fees”), in the amount and in accordance with the subscription level subscribed by Customer (“Subscription Level”) set forth in a Service Order. Complimentary EPs totals are reset at the beginning of each month and do not roll over into the following month. All Fees and payments must be made in, U.S. dollars.
(c) Pre-Authorization and Settlements. Meroxa will pre-authorize a charge to Customer’s account (a “Hold”), for Fees associated with a set number of Event Processes (“Hold EPs”) at the beginning of each month. The amount and number of Hold EPs is determined by the Customer’s Subscription Level. This Hold is not charged (settled) until the Customer has first consumed all Complimentary EPs for the month and all Hold EPs (collectively “Threshold EPs”). Once Customer has consumed all Threshold EPs, Meroxa will automatically originate a new Hold (a “Recurring Hold”). Customer will be charged for the Recurring Hold only once the Customer has consumed all Hold EPs associated with such Recurring Hold, whereupon, a new Recurring Hold will be automatically originated, and this process will continue for the rest of the month as the Customer consumes Event Processes. At the end of each month, the Customer will only be charged the prorated amount of the Hold (or current Recurring Hold) consumed by the Customer before the end of such month, and the difference is released. Meroxa’s payment processing service may require the release and renewal of Holds (and Recurring Holds) every seven days, such release and renewal will have no effect on the accounting of Fees owed by Customer. Card statements from certain card issuers may not distinguish between authorizations and settled charges, Customer is responsible for redressing any ambiguity with respect to authorizations and settled charges directly with their card issuer.
(d) Delinquent Accounts. Meroxa may suspend or terminate access to the Service, for any account for which any Fees are due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
(e) Taxes. All payments required by this Agreement exclude all sales, value-added, use, or other taxes and obligations, all of which Customer will be responsible for and will pay in full, except for taxes based on Meroxa’s net income. If Meroxa has the legal obligation to pay or collect taxes for which Customer is responsible pursuant to this Section 3(e), the appropriate amount will be invoiced to and paid by Customer, unless Customer provides Meroxa with a valid tax exemption certificate authorized by the appropriate taxing authority.
(a) Definition. As used herein, “Confidential Information” means all information of a Party (“Disclosing Party”), which if disclosed to the other Party (“Receiving Party”): (i) in tangible form, is designated in writing as being confidential at the time of disclosure; and (ii) if disclosed orally or visually, is identified as confidential at the time of disclosure, and reduced to writing and provided to the Receiving Party within 30 days of disclosure. The Confidential Information of Meroxa includes, the Technology, the Derivatives, and the Service. The Confidential Information of Customer includes, without limitation, the Customer Data. Notwithstanding the foregoing, Confidential Information does not include any information that the Receiving Party can show: (i) is or becomes generally known to the public without the Receiving Party's breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party's breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such Confidential Information without any third party's breach of any obligation owed to the Disclosing Party.
(b) Confidentiality. The Receiving Party will not: (i) use any Confidential Information of the Disclosing Party for any purpose other than to exercise its rights or to perform its obligations under this Agreement; or (ii) disclose, publish, or disseminate Confidential Information of the Disclosing Party to anyone other than the Receiving Party’s personnel (including employees, contractors and consultants) who have a need to know the Confidential Information for the purposes set forth in this Agreement and who are bound by a written agreement that prohibits unauthorized disclosure or use of Confidential Information that is at least as protective of the Confidential Information as the Receiving Party’s obligations hereunder. Notwithstanding the foregoing, the Receiving Party will have the right to share the existence and nature of this Agreement with potential investors or acquirers, or with such Party’s attorneys, accountants, bankers, or other professional advisors in connection with a financing, merger, acquisition, corporate reorganization, consolidation, or sale of all or substantially all of its assets, or as required by law. Further, Meroxa will have the unrestricted right to use or act upon any suggestions or feedback provided by or on behalf of Customer relating to the Service.
(c) Protection. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event will either Party exercise less than reasonable care in protecting such Confidential Information.
(d) Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by law, provided that the Receiving Party will make reasonable efforts to provide the Disclosing Party with prior written notice of such compelled disclosure and reasonable assistance (at Disclosing Party’s cost) if the Disclosing Party wishes to obtain protective treatment of the Confidential Information.
(a) By Meroxa. Meroxa represents and warrants to Customer that: (i) it will provide the Service in a professional manner consistent with applicable industry standards; (ii) it has all necessary right, power, and authority to enter into this Agreement and provide the Service to Customer in accordance with the terms of this Agreement without any conflict or breach of any contract or obligation to any third party; and (iii) to Meroxa’s knowledge, Customer’s use of the Service as provided and in accordance with this Agreement does not and will not infringe the intellectual property rights of any third party, provided that Customer’s sole and exclusive remedy for any breach of the foregoing representation is indemnification pursuant to Section 7(a).
(b) By Customer. Customer represents and warrants to Meroxa that: (i) Customer has the necessary right, power, and authority to enter into this Agreement without any conflict or breach of any contract or obligation to any third party, and to use and to permit the use of, the Systems, Customer Credentials, Customer Data, and other materials and information used, stored or processed in the course of using or permitting the use thereof in connection with the Service; (ii) Customer will not transfer any personal data, personal information or personally identifiable information to Meroxa without the consent of the individual(s) to whom such information relates; (iii) Customer has all rights necessary to grant Meroxa the licenses set forth in this Section 2(d) and to enable Meroxa to exercise its rights under the same without violation or infringement of the rights of any third party; and (iv) Customer is in compliance with, and will not violate any applicable law, including without limitation privacy and data protection laws and regulations, or Customer’s internal privacy policies, in connection with the collection, use or processing of personal data, personal information or personally identifiable information, the Systems, Customer Data, and any other materials used in connection with the Service. In the event of a breach or reasonably anticipated breach of the foregoing warranties, in addition to any other remedies available at law or in equity, Meroxa will have the right to immediately, in Meroxa’s sole discretion, suspend any related Service if deemed reasonably necessary by Meroxa to prevent any liability accruing to it.
(c) THE FOREGOING REPRESENTATIONS AND WARRANTIES WILL BE THE PARTIES’ EXCLUSIVE REPRESENTATIONS AND WARRANTIES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT AS EXPRESSLY STATED IN SECTION 5(a), THE SERVICES ARE PROVIDED “AS IS” OR “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MEROXA HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, ACCURACY, RESULTS, AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED.
(a) Exclusions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO ANY MATERIAL BREACH OF A PARTY’S OBLIGATIONS OF CONFIDENTIALITY SET FORTH IN SECTION 4, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY HEREUNDER FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) Maximum Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR EACH PARTY’S INDEMNITY OBLIGATIONS SET FORTH IN SECTION 7, IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY CUSTOMER TO MEROXA FOR THE SERVICES GIVING RISE TO THE APPLICABLE LIABILITY DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
(c) Basis of the Bargain; Failure of Essential Purpose. Customer acknowledges that Meroxa has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the Parties. The Parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
(a) By Meroxa.
(i) Meroxa will, at its own expense, defend or at its option settle any claim (“Claim”) brought against Customer to the extent it alleges that Customer’s use of the Service in accordance with this Agreement infringes any third party’s intellectual property rights; provided that Customer provides Meroxa with: (i) prompt written notice of such Claim; (ii) sole control over the defense and settlement of such Claim; and (iii) all available information and assistance reasonably requested by Meroxa, at Meroxa’s expense, to settle and/or defend any such Claim; provided, however, that the failure to give such notice will not relieve the Meroxa of its obligations hereunder except to the extent the Meroxa was actually prejudiced by such failure.
(ii) In the event any such Claim is brought or threatened, Meroxa may, at its sole option and expense: (i) procure for Customer the right to continue to use the Service; (ii) modify or amend all or a portion of the Service, or replace all or a portion of the Service with other service having substantially the same or better capabilities; or (iii) if Meroxa determines that the foregoing are not feasible on commercially reasonable terms, terminate this Agreement or a Service Order in whole or in part.
(iii) Meroxa will have no obligation to Customer under Section 7(a) to the extent a Claim arises from (i) Customer’s breach of this Agreement; (ii) the Customer Data; (iii) the combination of the Service with any of Customer’s products, services, data (including Customer Data), hardware, Systems, or business process; or (iv) implementation of any of Customer’s specifications or requirements.
(iv) The foregoing provisions of section 7(a)state the entire liability of MEROXA, and the sole remedy of CUSTOMER, with respect to any actual or alleged claim of infringement or misappropriation of intellectual property rights.
(b) By Customer. Customer will, at its own expense, indemnify and hold harmless Meroxa against all losses, costs and expenses arising out of a claim against Meroxa to the extent caused by Customer Data, Customer Credentials, or alleging any fact which, if true, would constitute a breach of any warranties set forth in Section 5(b); provided that Meroxa provides Customer: (i) timely written notice of such claim; (ii) sole control over the defense and settlement of such claim; and (iii) proper and full information and assistance, at Meroxa’s expense, to settle and/or defend any such claim. Failure to timely give notice will not relieve the Customer of its obligations hereunder except to the extent the Customer was actually prejudiced by such failure. Customer will have no obligation to Meroxa under this Section 7(b)to the extent such claims arise from Meroxa’s breach of this Agreement.
(a) Term. The initial term of this Agreement will commence on the Effective Date and will remain in force until all the Subscription Terms for Services purchased under all Service Orders expire or are terminated in accordance with this Agreement (the “Term”).
(i) Either Party will have the right to terminate this Agreement, or the applicable Service Order, upon written notice, if the other Party materially breaches this Agreement and fails to cure such breach within 30 days after receipt of written notice of the same. The foregoing cure period will not apply in the case of failure to pay fees.
(ii) Either Party may terminate this Agreement if: (i) the other Party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (ii) the other Party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within 60 days of filing.
(iii) Meroxa may, in addition to any rights it may have at law or at equity, suspend Meroxa’s access to the Service in the event that Meroxa determines that Customer’s use of the Service violates this Agreement or any applicable law or regulation, or would otherwise reasonably be expected to result in any harm or liability to Meroxa or any third party.
(c) Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (a) Meroxa may immediately cease providing the Service hereunder; (b) any and all payment obligations of Customer under this Agreement will become due immediately; (c) within 30 days after such expiration or termination, each Party will return or destroy the tangible embodiments of the other Party’s Confidential Information in its possession and will not retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement.
(d) Survival. Upon expiration or earlier termination of this Agreement, all rights and licenses granted by Meroxa hereunder will terminate. Any outstanding payments owed to Meroxa, all definitions, and the following provisions survive the expiration or termination of this Agreement: Sections 1, 2(d), 2(i), 4, 5(c), 6, 7(b), 8(c), 8(d) and 10. Neither Meroxa nor Customer will be liable to each other for any damages, including but limited to incidental or consequential damages, on account of the rightful termination of this agreement.
(a) Customer Name. Meroxa may use the name, brand, or logo of Customer (or Customer’s parent company) solely for the purpose of identifying Customer as a licensee or customer of Meroxa in a ‘customer’ section of Meroxa’s website, brochures, or other promotional materials, or as part of a list of Meroxa’s customers in a press release or other public relations materials. Any such limited use by Meroxa will include proper attribution to Customer or its parent company of any trademark or logo of Customer or its parent company, and will in no way suggest that Meroxa is affiliated with, or speaking on behalf of, Customer or Customer’s parent company.
(b) Marketing. Any other press releases or marketing materials referring to the trademarks or logos of Customer will require mutual approval in writing prior to public dissemination thereof.
(c) Opt-Out. If you do not wish for the Meroxa to use your name, brand, or logo, you may opt out of the provisions of Section 9(a) within 30 days after the date that you agree to this Agreement by sending an email to LegalNotice@meroxa.com that includes the Customer’s name, Customer’s email address associated with your account on the Service, and a statement that you wish to opt out of use of brand your brand name (“Opt-Out Notice”). The remaining provisions of this Agreement will not be affected by your Opt-Out Notice.
(a) Severability; Waiver. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be modified so as best to accomplish the original intent of the Parties to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving Party.
(b) Additional Terms. Your use of the Service is subject to all additional terms and conditions, policies, rules, or guidelines applicable to the Service or certain features of the Service together with any that we may post on or link to from the Service or on our website (collectively the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, this Agreement.
(c) Force Majeure. Except for obligations of payment, neither Party will be liable for any delay in, or impairment of, performance resulting in whole or in part from any force majeure event, including but not limited to acts of God, labor disruptions, labor shortages, acts of war, acts of terrorism (whether actual or threatened), governmental actions, insurrections, epidemics, pandemics, quarantines, shortages, communication or power failures, fires, accidents, explosions, inability to procure or ship product or obtain permits and licenses, inability to procure supplies or raw materials, transportation, severe weather conditions, catastrophic events, or any other circumstance or cause beyond the reasonable control of the Parties in the conduct of its business.
(d) Governing Law; Venue. This Agreement is governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of law principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
(e) Dispute Resolution and Arbitration. In the event of any controversy or claim arising out of or relating to this Agreement, or any breach thereof, such controversy or claim will be determined and settled by confidential arbitration, conducted in English, held in San Francisco, California, administered by the American Arbitration Association (“AAA”) before a sole arbitrator in accordance with the then-current AAA Commercial Arbitration Rules. The award rendered by the arbitrator will be final and binding on the parties thereto, and judgment thereon may be entered in any court of competent jurisdiction. Nothing in this Section 10(e) will prevent either Party from applying to a court of competent jurisdiction for equitable or injunctive relief.
(f) Assignment. Neither Party will have the right to assign this Agreement, in whole or in part, or any of its rights or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of the other Party, except that each Party may assign this Agreement as part of a corporate reorganization, upon a change of control, consolidation, merger, or sale of all or substantially all of its assets related to this Agreement. Any attempted assignment or delegation in violation of the foregoing will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each Party’s successors and permitted assigns.
(g) Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if in writing and submitted to Meroxa at LegalNotice@meroxa.com or to Customer at the email address used for account registration or provided in the most recent Sales Order. Notice via email to Meroxa must be accompanied with concurrent notice sent via certified mail/overnight delivery service to Meroxa at the address set forth in the preamble of this Agreement.
(h)Independent Contractors. Meroxa and Customer are independent contractors. This Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Meroxa and Customer. Neither Meroxa nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.
(i) Subcontractors. Subject to Section 4, Meroxa will have the right to use such subcontractors and third parties as it deems necessary to carry out its duties under this Agreement.
(j) Miscellaneous. The terms and conditions of any Service Order, and any exhibits, schedules and other documents referenced herein or therein are incorporated into the terms and conditions of this Agreement, and constitute the complete and exclusive agreement between the Parties with respect to the subject matter hereof, and supersede and replace any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. In the event of any conflict in the documents which constitute this Agreement, the order of precedence will be (i) this Agreement; (ii) Service Order; and (iii) any other schedules, exhibits and other documents referenced and incorporated herein and therein. Use of section headers in this Agreement are for convenience only and will not have any impact on the interpretation of any provision. Throughout this Agreement the use of the word “including” means “including but not limited to”.