MOBILE SOLUTIONS

Services Agreement

This MSS Solutions Agreement (“Agreement”) is a contract between MSS Services Holdings LLC, a Delaware corporation, having its principal place of business at 10731 East Easter Ave, Suite #105, Centennial, CO 80112  (“MSS”) and you, or if you represent an entity or other organization, that entity or organization, (in either case, the “Customer”). MSS and Customer may be referred to in this Agreement collectively as the “parties” or individually as a “party.”

MSS provides a carrier agnostic, action-based SaaS platform for procurement, asset management, and expense management of mobile devices and services. (the “Solutions”). Customer desires to purchase a subscription to access and use certain of the MSS Solutions for Customer’s own internal use and operations.

This Agreement sets forth the terms and conditions under which MSS will agree to provide Customer with a subscription to access and use those Solutions specified in written Purchase Agreements referencing this Agreement entered into by MSS and Customer (each, a “Purchase Agreement”) and perform those services specified in each Purchase Agreement (the services provided by MSS under this Agreement, including the services made available through the Solutions, the “Services”). All access to and use of the Solutions and the performance of all Services are subject to the terms of this Agreement.

This Agreement includes any Purchase Agreement entered into by the parties referencing this Agreement and any written Addendum attached to a Purchase Agreement, including descriptions of any Solutions or Services (each, an “Addendum”), all of which are hereby incorporated into and made a part of this Agreement. Unless you later enter into any other Agreement with MSS regarding the Solutions and Services, this Agreement is the complete and exclusive statement of the agreement between the parties and supersedes any proposal or prior agreement, oral or written, and any other communications between the parties, in relation to the subject matter of this Agreement. Terms used in this Agreement will have the definitions given in this Agreement or, if not defined in this Agreement, will have their plain English (US) meaning.

PLEASE CAREFULLY READ THIS AGREEMENT. BY ACCEPTING THIS AGREEMENT, THROUGH THE EXECUTION OF A PURCHASE AGREEMENT THAT REFERENCES THIS AGREEMENT, OR BY CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THIS AGREEMENT, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT OR ANY PURCHASE AGREEMENT, MSS IS NOT WILLING TO PROVIDE YOU, AS CUSTOMER, WITH ACCESS TO OR USE OF MSS’ SOLUTIONS OR SERVICES, AND YOU MUST NOT ACCESS OR USE MSS’ SOLUTIONS OR SERVICES. IF YOU ACCESS OR USE MSS’ SOLUTIONS OR SERVICES, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT AND ANY PURCHASE AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS HEREIN.

  1. TERM

a. The term of this Agreement shall begin upon the execution of an initial Purchase Agreement under this Agreement and, unless earlier terminated as permitted herein, shall continue for the period of time specified in that Purchase Agreement (“Initial Term”). The execution of any subsequently added Purchase Agreement under this Agreement shall not extend the Initial Term unless otherwise expressly stated in that Purchase Agreement.

b. Unless otherwise stated in an applicable Purchase Agreement under this Agreement, the Initial Term of this Agreement shall automatically renew for the same length and successive terms (each, a “Renewal Term”) if no action is taken, unless and until terminated as provided in Section X.

c. Prior to 90 days to the expiration of the Term, Client may elect a month-to-month renewal or elect to cancel by providing its election in writing.

2. SOLUTIONS

a. FUNCTIONALITY. The Solutions will include the functionality described in the applicable Purchase Agreement or Addendum for each Solution. MSS may from time to time update, change, or revise the functionality of the Solutions, provided the functionality of the Solutions is not materially decreased from that described in the applicable Purchase Agreement or Addendum to a Purchase Agreement.

b. SUBSCRIPTION. Subject to the terms and conditions of this Agreement, during the term of this Agreement MSS will provide Customer with a non-exclusive, non-transferable, and non-sublicensable subscription to allow employees and independent contractors of Customer (“Users”) to access and use the Solutions, solely for purposes of Customer’s own internal use and operations.  The subscription applies only to the Users and does not allow access to or use of the Solutions by any affiliated entities or organizations, or any other entity unless approved in advance by MSS in writing.

c. ACCESS. Customer may access the Solutions solely through the account established for Customer (an “Account”). Customer will be permitted to establish user identifications and passwords through which individual Users may access the Solutions through Customer’s Account (“User IDs”). Each User ID is issued to a specific User and may be used only by that User. Customer will ensure that all information about each User provided to MSS in connection with establishing each User ID is accurate and complete and will maintain that information as accurate and complete throughout the term of this Agreement. Customer is and will remain solely responsible for all use of the Solutions by any User and for compliance by each User with the applicable terms of this Agreement. If Customer authorizes an independent contractor or consultant as a User, in addition to being responsible for such independent contractor’s or consultant’s actions as a User, Customer shall also require such independent contractor or consultant to agree to terms at least as protective of the Solutions as those contained in this Agreement prior to being granted access to the Solutions. Customer will ensure the security and confidentiality of each User ID and will use commercially reasonable efforts to prevent unauthorized access to or use of the Solutions. Customer will notify MSS promptly of any such unauthorized access or use of the Solutions or if any User ID is lost, stolen, or otherwise compromised. Customer acknowledges that Customer is and will remain fully responsible for all costs, fees, liabilities, or damages incurred through any access to or use of the Solutions through Customer’s Account or by any User (whether lawful or unlawful) and that any Services used or transactions facilitated through Customer’s Account or under any User ID will be deemed to have been completed by Customer. In no event will MSS be liable for the foregoing obligations or any failure by Customer to fulfill such obligations

d. RESTRICTIONS. The Solutions, the software, hardware, databases, and other technology used by or on behalf of MSS to provide the Solutions (the “MSS Technology”), and their structure, organization, and underlying data, information, and source code, constitute valuable trade secrets of MSS and its licensors. As a condition to the use of and access to the Solutions, Customer will not, and will not permit any User or other third party to: (a) access or use the Solutions except as expressly permitted by this Agreement; (b) access or use the MSS Technology directly, except through the Solutions as expressly provided in this Agreement; (c) use the Solutions in any unlawful or illegal manner or in any other manner that could damage, disable, overburden or impair the MSS Technology; (d) use automated scripts to collect information from or otherwise interact with the MSS Technology; (e) alter, modify, reproduce, create derivative works of the MSS Technology; (f) distribute, sell, resell, lend, loan, lease, license, sublicense, transfer, or otherwise make available the Solutions or any of Customer’s rights to access or use the Solutions or any Service to any third party; (g) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the MSS Technology; (h) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the MSS Technology; (i) use the MSS Technology for purposes of monitoring their availability, performance or functionality, or for any other benchmarking, business intelligence, data mining, or competitive purposes; or (j) interfere in any manner with the operation or hosting of the MSS Technology.

e. THIRD PARTY OFFERINGS. Customer agrees and acknowledges that certain portions of the Solutions may be provided by third party providers (“Third Party Offerings”). Customer’s access to and use of any Third Party Offering is also subject to any other agreement separate from this Agreement that Customer may enter into (or may have entered into) relating to those Third Party Offerings (“Third Party Terms”). In addition to the terms of this Agreement, access to and use of each Third Party Offerings is also subject to the terms and conditions of any Third Party Terms applicable to that Third Party Offering. Except as set forth in this Agreement, any applicable Third Party Terms will control in the event of a conflict between the terms of this Agreement and those Third Party Terms. Except as expressly set forth in any Third Party Terms, You are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Third Party Offerings.

f. CUSTOMER’s OBLIGATIONS. Beginning on the Effective Date of this Agreement, and continuing through the term of this Agreement, Client will do the following:

Initiate all move/add/change/disconnect requests through the MSS platform to ensure transaction optimization.

    1. Initiate all move/add/change/disconnect requests through the MSS platform to ensure transaction optimization.
    2. Maintain MSS administrative accounts with the providers and complete provider letters of authorization.
    3. MSS will not be held responsible for move / add / changes / disconnect requests initiated outside of it platform, including any or all billing repercussions as a result thereof.

 

3. SERVICES

a. If Customer enters into a Purchase Agreement, including any applicable Addendum specifying any of the following Services, MSS will use commercially reasonable efforts to provide those Services to Customer during the term of this Agreement. All such Services are provided subject to the terms and conditions of this Agreement. MSS has no obligation to provide any of the following Services unless specified in a Purchase Agreement or Addendum to this Agreement.

b. SERVICE DESK. MSS will provide Customer with Services for the Solutions as specified in Addendum A if such Addendum is attached to a Purchase Agreement (“Service Desk Support”).

c. PROFESSIONAL SERVICES. MSS will perform any additional professional Services relating to the Solutions (“Professional Services”) if specified in any written statement of work mutually agreed to by both parties under this Agreement. MSS will perform all Professional Services at the rates for those Professional Services set forth in each applicable statement of work, or, if no rates are set forth in an applicable statement of work, at MSS’s then-current rates for those Professional Services. Professional Services shall be performed during the working hours stated in the statement of work applicable to those Professional Services, or, if no working hours are stated, the Professional Services will be provided during the hours of 7:00 a.m. to 7:00 p.m., Mountain Standard or Mountain Daylight Time, whichever is applicable, Monday through Friday excluding holidays.

4. SOFTWARE

a. MSS may provide Customer with software in connection with the Solutions (“Software”). Unless any Software provided by MSS in connection with the Solutions is subject to a license or other agreement separate from this Agreement that Customer has entered into (or may enter into) with MSS (a “Software License Agreement”), MSS grants Customer a limited, non-exclusive, non-transferrable, non-assignable, license solely for Customer’s own internal use and operations in connection with Customer’s access to and use of the Solutions. Except as expressly set forth in the foregoing sentence (or any applicable Software License Agreement), Customer is granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Software, and Customer may not modify, reproduce, perform, display, create derivative works from, republish, post, transmit, transfer, sell, distribute, or in any way exploit any Software without the prior written permission of MSS. Except as set forth in this Agreement, the terms of any Software License Agreement will control in the event of a conflict between the terms of this Agreement and that Software License Agreement. MSS and its licensors will not be responsible to Customer for loss of use of any Software or for any other liabilities arising from alterations, additions, adjustments, or repairs which are made to any Software by Customer or other third parties. MSS reserves the right to terminate the licenses granted to any Software or any Services provided in connection with that Software upon written notice to Customer if any such alteration, addition, adjustment, or repair adversely affects MSS’s ability to render Services.

5. FEES AND PAYMENT

a. FEES. Customer agrees to pay MSS all fees specified in any Purchase Agreement and as otherwise specified in this Agreement (“Fees”).

b. PAYMENT. All Fees will be invoiced in advance in accordance with the terms applicable to such Fees. If no terms for an applicable Fee are set forth in the applicable Purchase Agreement, such Fees will be invoiced on a monthly basis following the end of the month in which they were incurred. All Fees as set forth on each invoice issued by MSS under this Agreement will be due and payable by Customer in immediately available U.S. funds within 30 days of the date of invoice. If Customer has not made payment within 30 days of the date of invoice, Customer shall be in default. Customer’s default will constitute sufficient cause for MSS to suspend Customer’s access to the Solutions or any Services upon notice to Customer. All Fees will be non-refundable once paid to MSS (including upon any termination or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law. If MSS requires use of collection agencies, attorneys, or courts of law for collection on Customer’s account, Customer will be responsible for those expenses. Customer will be responsible for all use, sales, and other taxes imposed on the Services provided under this Agreement.

c. TAXES. The Fees do not include any local, state, provincial, federal or foreign taxes, levies, assessments, duties, or other governmental charges of any kind or nature, including, without limitation, any value-added tax (VAT), stamp or other similar tax, social security (or local equivalent), state or regional tax, or income or other federal tax (“Taxes”). Customer is responsible for paying all Taxes that may be imposed by way of the performance of either party under this Agreement, excluding only Taxes based on MSS’s net income. If MSS is found or deemed to have a legal obligation to pay or collect any Taxes for which Customer is responsible under this Agreement, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides MSS with a valid tax exemption certificate authorized by the appropriate taxing authority.

d. FEE INCREASES. MSS may increase the Fees applicable to Customer to the then-current prices for the next Renewal Term if auto renewed per Section 1B.

e. EXPENSES. Customer shall reimburse MSS for reasonable expenses incurred during the provision of Professional Services. Reasonable expenses include, but are not limited to, travel, lodging, and meals. Expenses are billed based on actual costs incurred. Estimated expenses shall be included in each Purchase Agreement. MSS shall not exceed the estimated expenses without written approval from Customer.

f. DEVICE BUYBACK. If MSS facilitates the resale of Customer’s devices under the Device Reclamation Services solution, MSS will retain ten percent (10%) of the retail value of Customer’s devices.

6. TERMINATION

a. TERMINATION FOR CAUSE. Either party may terminate this Agreement immediately upon notice to the other party if the other party: (a) materially breaches this Agreement and fails to remedy such breach within 30 days after receiving notice of the breach from the other party; (b) materially breaches this Agreement in a manner that cannot be remedied; or (c) commences bankruptcy or dissolution proceedings, has a receiver appointed for a substantial part of its assets, or ceases to operate in the ordinary course of business.

b. SERVICE LEVELS. In the event the SLA does not meet Service Level specified in the applicable addendum, a credit will be issued of 1% of the MRC of the affected location for each percentage point below the SLA. Service Levels are stated in Addendum A.

      1. This agreement may be terminated by Customer if MSS does not achieve the monthly Guaranteed Controllable Average Cost per device as defined in the Purchase Agreement or the Client may elect to continue using MSS service for free until guarantee is achieved.
      2. If MSS does not achieve contractual guarantees in 6b, Client may elect to continue using MSS service for free until guarantee levels are achieved.

c. SERVICE DISCONTINUANCE. If MSS at any time discontinues offering any Solutions or any Services to new customers, MSS will give Customer reasonable advance notice of such discontinuation. Upon such date of discontinuation, MSS will have the right to terminate this Agreement as to those Solutions or Services upon notice to Customer. As of the date of termination, MSS will credit to Customer, on a pro-rated basis, any pre-paid Fees under this Agreement and MSS shall have no further obligation to provide the Solutions or any Service under this Agreement.

d. SUSPENSION.  Without limiting MSS’s right to terminate this Agreement, MSS may suspend Customer’s access to the Solutions or any Services upon notice to Customer following any breach of this Agreement if deemed reasonably necessary by MSS to prevent any damage, injury, or harm to MSS, the MSS Technology, any other MSS customer, or any third party.

e. EFFECT OF TERMINATION. All Purchase Agreements shall terminate immediately upon termination of this Agreement. Upon termination or expiration of this Agreement for any reason, and following any applicable Transition Period: (a) MSS may cease providing access to all Solutions and Services under this Agreement; (b) all subscriptions and other rights and licenses granted to Customer under this Agreement will terminate; (c) Customer will immediately cease all use of and access to all Solutions and Services; (d) all Fees and other amounts then owed by Customer under this Agreement will become immediately due and payable to MSS; (e) Customer will immediately either return to MSS or, at MSS’s discretion, destroy any MSS Data and MSS Confidential Information (each as defined below) then in Customer’s possession or control; and (f) MSS will either return to Customer or, at Customer’s discretion, destroy any Customer Data and Customer Confidential Information) then in MSS’s possession or control. The following Sections will survive termination or expiration of this Agreement for any reason: 5 (Fees and Payment), 6.4(Effect of Termination), 7 (Ownership), 10 (Disclaimer), 11 (Indemnification), 12 (Limitation on Liability), 13 (Confidentiality), 14 (Governing Law), 15 (Force Majeure), 16 (Notice), and 17 (Additional Terms).

7. OWNERSHIP. MSS retains all right, title, and interest in and to the Solutions, MSS Technology, MSS Data, any additions, improvements, updates, new versions, or other modifications thereto created by either party, whether or not through the Services, alone, jointly, or with any third party, and all IPR (as defined below) therein and related thereto. Customer does not receive any ownership interest in or to any of the foregoing, and no right or license is granted to Customer to use any of the foregoing apart from Customer’s right to access and use the Solutions under this Agreement. Customer will perform all acts reasonably necessary to assist MSS in perfecting and defending MSS’s ownership interest in any of the foregoing. Without limiting the foregoing, Customer agrees to and does hereby make all assignments necessary to provide MSS with the ownership rights set forth in this Section. All names and logos associated with the Solutions and other Services are trademarks of MSS (or its third party providers) and no right or license is granted to Customer to use them. Any rights not expressly granted to Customer hereunder are reserved by MSS. Customer will not remove or alter any proprietary rights legend on the Solutions, MSS Technology, or MSS Data. For purposes of this Agreement, “IPR” means any and all intellectual property and other proprietary rights throughout the world, including, all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, rights in data and databases, and contract rights.

8. DATA

a. CUSTOMER DATA. As between Customer and MSS, Customer retains ownership of all data, information, and other content provided to MSS or through the Solutions by or on behalf of Customer (“Customer Data”). Customer is responsible for all Customer Data, including the accuracy, quality, integrity, legality, reliability, and appropriateness thereof. Customer will obtain and maintain all authorizations, approvals, permissions, and other rights necessary for MSS to use and process all Customer Data in the performance of the Services and any other obligations of MSS under this Agreement. Customer will maintain an adequate back-up of all Customer Data and, except for any express obligations of MSS to maintain back-up copies of Customer Data, MSS will not be responsible or liable for any deletion, correction, destruction, damage, loss, or failure to store or back-up any of Customer Data.

b. MSS DATA. As between MSS and Customer, MSS retains ownership of all data, information, and other content provided to Customer through the Solutions and the other Services, excluding any Customer Data (“Customer Data”). Subject to the terms of this Agreement, Customer may access the MSS Data without modification solely for Customer’s own internal business purposes in connection with Customer’s use of and access to the Solutions. MSS uses commercially reasonable measures to ensure the accuracy and reliability of all MSS Data, but except as expressly provided herein MSS will not be responsible for any erroneous data, information, or content provided through the Solutions. Except as expressly provided in this Agreement, Customer is granted no rights in or to the MSS Data.

c. DATA SECURITY. MSS shall establish and maintain during the term an information security policy providing for reasonable administrative, technical, physical safeguards and security measures designed to protect against the unintended or unauthorized destruction, loss, alteration, or access of any Customer Data in the possession or control of MSS, which safeguards and measures are compliant with applicable federal, state, provincial, or local laws, rules, and regulations (“Laws”). Customer will establish and maintain during the term reasonable and appropriate administrative, technical, and physical safeguards and security measures designed to protect against the unintended or unauthorized destruction, loss, alteration, or access of any MSS Data in the possession or control of Customer, which safeguards and measures are consistent with applicable Laws. Each party will promptly notify the other party of any data security breach or similar incident that has, or might have, compromised the privacy or security of any Customer Data or, in the case of Customer, any MSS Data in the possession or control of such party. Each party will indemnify and hold harmless the other party from and against any damages or losses asserted against or incurred by the other party arising out of or related to a breach of a party’s data security obligations.

d. DATA PRIVACY. MSS may use and disclose data and information collected through the operation of the Solutions solely as described in this Agreement and in MSS’s then-current privacy policy applicable to the Solutions. Notwithstanding anything to the contrary in the privacy policy, MSS will have the right to collect and analyze non-personal information (data or information that does not identify an entity or natural person as the source thereof) resulting from Customer’s access to and use of the Solutions. To the extent any such non-personal information is collected or generated by MSS, the data and information may be used by MSS, or its permitted service providers, for any lawful business purpose, provided that the data and information is used only in an aggregated form, without directly identifying Customer, or any other User, as the source thereof.

9. REPRESENTATIONS AND WARRANTIES

a. GENERAL. Each party represents, warrants, and covenants to the other party that: (a) it has and will continue to have during the term hereof, all rights, power, and authority necessary to enter into this Agreement and perform all of its obligations under this Agreement; (b) the performance of its obligations under this Agreement does not and will not violate any Law applicable to such party’s performance, any rights of any third party, or any agreement by which such party is bound; and (c) it will procure all rights, certificates, licenses, permits, or other approvals required for its performance under this Agreement.

b. PERFORMANCE. During the term of this Agreement, MSS represents and warrants to Customer that MSS will use commercially reasonable efforts to maintain and verify that the Solutions operate in accordance with the applicable documentation for the Solutions provided to Customer by MSS and in accordance with any other levels of performance specified in this Agreement or applicable Purchase Agreement. MSS’s sole obligation and Customer’s sole and exclusive remedy in the event of any failure of the Solutions to comply with any such performance levels will be for MSS to, at its option: (a) remedy the failure or re-perform the affected Services; or (b) refund Customer the portion of any Fees applicable to the portion of the Solutions subject to the failure.

c. NON-INFRINGEMENT. MSS represents and warrants to Customer that the use by Customer of the Solutions during the term and in accordance with this Agreement (the “Covered Services”) will not infringe any third party U.S. patent or copyright or misappropriate any third party trade secret in existence under any Laws of any state within the U.S. As MSS’s sole obligation and Customer’s sole and exclusive remedy for of any failure by MSS to comply with the foregoing sentence, MSS will defend Customer against any such failure as set forth in Section 11.2.

10. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SOLUTIONS AND ALL SERVICES UNDER THIS AGREEMENT, AND ALL MSS DATA PROVIDED THROUGH THE SOLUTIONS OR THOSE SERVICES, ARE PROVIDED TO CUSTOMER STRICTLY “AS IS” AND “AS AVAILABLE” AND MSS AND ITS PROVIDERS EXPRESSLY DISCLAIM, AND CUSTOMER DISCLAIMS ANY RELIANCE ON, ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD THERETO OR TO ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AVAILABILITY OR ERROR-FREE OPERATION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MSS, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT.

11. INDEMNIFICATION

a. GENERAL. Each party (the “Indemnifying Party”) will defend the other party and its officers, directors, employees, and agents (its “Related Parties”) from and against any claim, allegation or action (any “Action”) brought against the other party or one of its Related Parties by a third party (other than by the other party itself or another of its Related Parties) to the extent relating to, resulting from, or arising out of the gross negligence or willful misconduct of the Indemnifying Party in the performance (or failure to perform) any of its obligations under this Agreement. The Indemnifying Party will further pay those losses, liabilities, damages, fees, expenses, and costs (including reasonable attorneys’ fees and court costs) (“Losses”) finally awarded against the other party or one of its Related Parties in any such Action or those Losses agreed to in a monetary settlement of such Action, as applicable.

b. NON-INFRINGEMENT. MSS will defend Customer from and against any Action brought against Customer by a third party (other than a Customer Related Party) that the use by Customer of the Covered Services infringes any U.S. patent, or copyright or misappropriates any trade secret in existence under any Laws of any state within the U.S. MSS will pay those Losses finally awarded against Customer in any such Action or those Losses agreed to in a monetary settlement of such Action, as applicable. If Customer is, or MSS reasonably believes Customer may be, enjoined from using any Covered Service due to an Action covered by this Section, MSS may procure the right for Customer to continue using the Covered Service, replace or modify the Covered Service so that it becomes non-infringing, or terminate this Agreement and provide Customer a refund of any pre-paid amounts applicable to the Covered Service (if any). MSS will have no obligation under this Section or otherwise with respect to any Action or Losses in the case of: (a) any use of any Covered Service other than by Customer; (b) any use of any Covered Service not under and in accordance with this Agreement; (c) any use of any Covered Service in combination with products, equipment, services, processes, software, data or information not supplied by MSS; or (d) any modification of or enhancement to any Covered Service other than by MSS. This Section constitutes MSS’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for any infringement or misappropriation of IPR or any other rights relating to the solutions.

c. BY CUSTOMER. Customer will defend MSS and its Related Parties from and against any Action brought against MSS or one of its Related Parties by a third party (other than by MSS or another MSS Related Party) to the extent relating to, resulting from, or arising out of any: (a) any violation of any Law caused by the use of or access to the Solutions by Customer; or (b) any claim or allegation by a User or other third party relating to use of or access to the Solutions or any Services by Customer. Customer will only pay those Losses finally awarded against MSS in any such Action or those Losses agreed to in a monetary settlement of such Action, as applicable.

d. CONDITIONS. All obligation of each party to defend or indemnify the other party or any Related Party under this Agreement are conditioned upon the party seeking defense or indemnification (the “Indemnified Party”) providing the other party with: (a) prompt notice of any such claim for indemnification or defense after receiving notice thereof; (b) sole control over the defense and settlement of such claim, provided that any settlement that will require the other party to assume any liability other than the payment of monies will be subject to the other party’s prior written consent; and (c) reasonable assistance in such defense or settlement (at the indemnifying or defending party’s expense).

12. LIMITATION ON LIABILITY. IN NO EVENT WILL MSS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THIS AGREEMENT, INCLUDING THE USE OF OR ACCESS TO THE SOLUTIONS OR ANY SERVICES OR THE MSS TECHNOLOGY (OR ANY MSS DATA), EVEN IF MSS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING ANY LOSS OF DATA, OPPORTUNITY, LOSS OF REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE SERVICES. MSS’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE SOLUTIONS, AND ALL SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO MSS HEREUNDER IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING CAUSE TO SUCH LIABILITY.

13. CONFIDENTIALITY

a. PROTECTION. Each party (the “Receiving Party”) may from time to time receive or otherwise obtain data or information regarding the business, finances, services, or technology of the other party (the “Disclosing Party”), including, without limitation, technical, advertising, marketing, sales, financial, pricing, employee, customer, and planning information, or any other information that by its very nature the Receiving Party should know is confidential (“Confidential Information”). The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or permitted contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information in the same manner as the Receiving Party protects its own confidential information of a similar nature and with no less than reasonable care.

b. EXCEPTIONS. The Receiving Party’s obligations with respect to any Confidential Information of the Disclosing Party will terminate if such information: (a) was already lawfully known to the Receiving Party as of the Effective Date; (b) is disclosed to the Receiving Party after the Effective Date by a third party who had the right to make such disclosure without any confidentiality restrictions; or (c) is, or through no fault of the Receiving Party becomes, generally available to the public. The Receiving Party may disclose the Confidential Information of the Disclosing Party if compelled or required to do so by a court of competent jurisdiction or other governmental entity having jurisdiction over the Receiving Party, provided that the Receiving Party provides the Disclosing Party with notice of such requirement and provides reasonable assistance to the Disclosing Party in any attempts to contest such disclosure or obtain a protective order or other applicable limitation with respect to such disclosure.  In any event, the Receiving Party will be entitled to receive payment of its expenses and costs actually incurred in responding to such disclosure request and will disclose only such portion of any Confidential Information as it is legally compelled or required to disclose.

c. RETURN OF CONFIDENTIAL INFORMATION. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the request of the Disclosing Party or when such Confidential Information is no longer needed in connection with its performance under this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with the foregoing obligations.

d. GOVERNING LAW. The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the state/province where the Customer has its principal place of business. Each party agrees that it will bring any action or proceeding arising from or relating to this Agreement exclusively in a federal or state/provincial court in the state/province where the Customer has its principal place of business, and each party irrevocably submits to the personal jurisdiction and venue of any such court in any such action or proceeding or in any action or proceeding brought in such courts.

e. FORCE MAJEURE. Neither party will be held responsible for failure or delay in the performance of any obligation under this Agreement, with the exception of the obligation to pay Fees, if such failure or delay is due to acts of God, war, terrorism, strikes, boycotts, labor disputes, fire or other loss of facilities, accident or any other cause beyond its control (each, a “Force Majeure”). If the performance of any obligation under this Agreement by either party is prevented, restricted or interfered with by reason of a Force Majeure event, the party whose performance is so affected, upon giving prompt notice to the other party, will be excused from such performance to the extent of such Force Majeure event, provided that the party so affected will take all reasonable steps to avoid or remove such causes of non-performance and will continue performance hereunder with dispatch whenever such causes are removed.

f. NOTICE. All notices, reports, consents, authorizations and approvals to be given by a party hereunder will be in writing and will either be via: (1) hand-delivery; (2) reputable overnight mail service; (3) facsimile transmission, provided that an original copy of a transmission will be delivered by some other means permitted under this Agreement; or (4) certified mail, return receipt requested, to the other party at its respective addresses set forth above. All notices will be effective upon receipt (or when delivery is refused), or 3 business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address for notice by giving notice of the new address to the other party.

g. ADDITIONAL TERMS. Unless otherwise amended as provided herein, this Agreement will exclusively govern Customer’s access to and use of the Solutions and all Services and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties. Except as expressly set forth in this Agreement, this Agreement may be modified or amended only in writing signed by both parties. If any term of this Agreement is to any extent illegal, otherwise invalid, or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term. If application of this provision should materially and adversely affect the economic substance of the transactions contemplated hereby, the Party adversely impacted shall be entitled to compensation for such adverse impact, provided the reason for the invalidity or unenforceability of a term is not due to serious misconduct by the Party seeking such compensation. Neither this Agreement nor any rights or obligations of Customer hereunder may be assigned without the prior written approval of MSS. Any assignment in violation of the foregoing will be null and void. MSS may assign this Agreement to any party that assumes MSS’s obligations hereunder, including by sale, merger, consolidation, or operation of law or otherwise. MSS may subcontract its obligations under this Agreement, provided that MSS remains responsible for compliance with the applicable terms of this Agreement as to those obligations. The words “include,” “includes” and “including” means “include,” “includes” or “including,” in each case, “without limitation.” All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. The preprinted terms of a purchase order or any other similar document will not apply to or modify this Agreement. The parties hereto are independent parties, not agents, employees.