This Master Agreement is entered into between the MRI Software company named in the attached Order Document (“MRI”) and the Client named in the Order Document, and the authorized representatives of the Parties hereby execute this Master Agreement to be effective as the Effective Date, as defined in the Order Document. As used in this Agreement, “Party” means either Client or MRI, as appropriate, and “Parties” means Client and MRI.
1. PURPOSE AND SCOPE
1.1 Master Agreement. This Master Agreement establishes the general terms and conditions to which the Parties have agreed in order to facilitate the licensing of residential and/or commercial property management enterprise software, content, other products and/or the provision of related services. Additional product or service-specific terms and conditions are set forth in one or more Schedules (as further defined in Section 1.2 herein).
All references to the “Master Agreement” shall mean this document, exclusive of Schedules. All references to the “Agreement” wherever found shall include this Master Agreement, all Schedules, the Order Document and any attachments incorporated in the Schedules.
1.2 Incorporation of Schedules.
This Master Agreement shall fully incorporate by reference the terms and conditions found in each of the Schedules indicated on the Order Document or incorporated into these terms
The Parties may execute, from time to time, additional Schedules under the terms of this Master Agreement.
1.3 Incorporation of Order Documents.
“Order Document” means the document(s), regardless of its actual name, executed by the Parties which incorporates by reference the terms of this Master Agreement and applicable Schedules, and describes Client’s order-specific information, such as description of Software or Services ordered, license scope, use and restrictions, fees, milestones, and/or Third Party EULAs, if any.
At any time after execution of the initial Order Document, Client may purchase additional Software licenses or Services or otherwise expand the scope of such license or Services granted under an Order Document, upon MRI’s receipt and acceptance of a new Order Document specifying the foregoing.
1.4 Incorporation of EULAs. Client’s use of any Third Party Software licensed hereunder or incorporated in the SaaS Services shall be subject to, and Client shall comply with, the Agreement and any applicable EULAs, if any, the terms of which may be incorporated in the Agreement or contained in a separate document. As between Client and MRI, to the extent any terms and conditions of this Master Agreement or a Schedule conflict with the terms and conditions of a Third Party EULA, the terms and conditions of this Master Agreement and the Schedule shall control unless the Third Party EULA explicitly overrides a term or condition of the Master Agreement or Schedule. However, should a dispute arise between Client and the Third Party Software provider, the terms of the applicable Third Party EULA shall control but only to the extent MRI is not a party to such dispute. By way of example, if this Agreement is subject to Ohio Law and a Third Party EULA is subject to California law, a dispute among MRI, Client and the Third Party Software provider would be subject to Ohio law, but a dispute only between Client and the Third Party Software provider would be subject to California law. Each Third Party Software provider shall be considered a third party beneficiary of the Agreement, with rights to enforce the terms of the Agreement and the EULA, if any, against Client, pursuant to the terms of Section 10.14 below.
1.5 Administrators. For the purposes of this Agreement, “Administrators” means the individual so designated by Client on the Order Document. An Administrator has full administrative privileges for all Software and Services, including without limitation (i) creating, deleting or modifying databases or user accounts; (ii) creating, deleting, copying, restoring or requesting copies of databases; (iii) requesting security and audit reporting; (iv) security class modification; and (v) site modification. Once named, the Administrator(s) shall have sole authority to instruct MRI and make decisions on behalf of Client regarding Client’s use of the Software or Services. MRI shall be entitled to rely upon any representation of the Administrator(s) without further verification of authority. MRI may, from time to time, in its sole discretion, require written documentation of Client verifying the authority or continued authority of any Administrator, which Client shall provide upon request. At least one (1) Administrator must be a Designated Support Contact. An Administrator must be an employee of the Client.
1.6 Designated Support Contact. For the purposes of this Agreement, “Designated Support Contacts” means the Client employees so designated by Client on the Order Document. The Client shall have the number of Designated Support Contacts as designated on the Order Document. Only a Designated Support Contact shall be permitted to contact MRI for any Maintenance and Support services and shall have the authority to (i) log case requests; and (ii) receive status updates on cases. A Designated Support Contact must be an employee of the Client.
1.7 Client User. For the purposes of this Agreement, “Client User” means a Client employee or Client Affiliate, acting directly on behalf of Client and using the Software or Services solely for the purpose of the Client’s internal business operations. If an Affiliate is a Client User, Client warrants that it has the authority to bind such Affiliate(s) to the terms of the Agreement and any applicable Schedule and further warrants that Client shall be jointly and severally responsible (with any such Affiliates) for a breach of such terms by its Affiliates. Client shall only permit Client Users to access and use any Software or Service and represents and warrants that all Client Users shall comply with the terms and conditions of use set forth in this Agreement and each such Client User shall be bound by a nondisclosure agreement with provisions that are at least as restrictive as the terms of this Agreement. Client shall indemnify and hold MRI harmless for all loss, damages, costs and expenses (including reasonable attorneys’ fees) incurred by MRI for any breach or other violation of this Agreement by a Client User. An independent contractor, agent or other third party acting on behalf of Client may be deemed a Client User upon prior written consent of MRI, which MRI shall determine in its sole discretion, and may require such independent contractor, agent or other third party to certify with or enter contractual terms with MRI acceptable to MRI. In no event shall the combined use of the Software or Services hereunder by Client and its Client Users exceed the Licensed Metrics authorized under the applicable Order Document.
DEFINITIONS
“Affiliate” means an entity controlling, controlled by or under common control with a Party to the Agreement where control means the ownership or control, directly or indirectly, of more than fifty percent (50%) of all the voting power of the shares (or other securities or rights) entitled to vote for the election of directors or other governing authority.
“Client” means the entity that has entered into this Agreement with MRI. “Client” also refers to Affiliates authorized to use the Software and Services in accordance with Section 1.7.
“Client Data” means any data, media, content, and information that Client provides, generates, transfers, uploads or makes available to MRI under the Agreement, whether printed, electronic, or in some other format. Information that is collected by the System as part of the Services shall be considered information that has been provided by the Client. Client Data shall include, without limitation, documents, data, spreadsheets, photographs, video, and other media. Client Data shall also include data and information belonging to Owner as well as Owner’s customers and Client’s customers. Feedback provided to MRI by the Client shall not be considered Client Data
“Content” means any information, data, text, software, music, sound, photographs, graphics, video messages or other material to which Client is provided access through MRI or the Software.
“Configurations” means, regardless of whether such Configurations are performed by MRI, Client or Client User, (i) configurations implemented through use of the MRI application toolkit or other MRI approved industry standard toolkit, and not through source code change, or (ii) modifications to standard services reports. Notwithstanding any other provision in the Agreement, if Client has Configurations performed by a third party, such third party must be qualified as a Client User pursuant to Section 1.7 prior to the disclosure of any MRI Confidential Information to such third party.
“Documentation” means the user instructions, release notes, Functional Specifications, manuals and on-line help files in the form generally made available by MRI, regarding the use of the applicable Software.
“Functional Specifications” means those specifications of the MRI Software’s functionality as set forth in the MRI Software LLC and Affiliated companies Functional Specifications, which may be found on www.mrisoftware.com/MRIfunctionalspecs.asp , which specifications may be updated from time to time by MRI upon posting new specifications at such web page address.
“Intellectual Property” means any and all intellectual property rights, recognized in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed or recorded, including without limitation inventions, technology, patents rights (including patent applications and disclosures), copyrights, trade secrets, trademarks, service marks, trade dress, methodologies, procedures, processes, know-how, tools, utilities, techniques, various concepts, ideas, methods, models, templates, software, source code, algorithms, the generalized features of the structure, sequence and organization of software, user interfaces and screen designs, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems, training methodology and materials, which MRI has created, acquired or otherwise has rights in, and may, in connection with the performance of Services hereunder, create, employ, provide, modify, create, acquire or otherwise obtain rights in.
“License Metrics” means the limitation on the usage of each of the Software and Maintenance and Support services as designated and/or defined in the applicable Order Document by a term such as the number of leases, units, assets, users and the like.
“Maintenance and Support” includes (i) phone assistance and workarounds so that the Software operates in material conformance with the Functional Specifications, and (ii) Updates, all of which are provided under MRI’s Maintenance and Support Policies (as may be amended by MRI from time to time) in effect at the time the Support is provided. For the avoidance of doubt, Support excludes Professional Services.
“Maintenance and Support Policies” means those policies and procedures that are listed in the Maintenance and Support Policies, that may also be found on MRI’s website www.mrisoftware.com/maintenanceandsupport , which may be subject to update by MRI from time to time.
“MRI Software” means each MRI-developed and/or MRI-owned software product in machine readable object code (not source code), the Documentation for such product, and any Updates and Upgrades thereto (if purchased by Client).
“Owner” The Software is designed to be used for residential and/or commercial property management. If the Client is not the owner of such property or not the owner of all such properties for which the Software or any Service is utilized; but rather, Client is the manager for the owner of such property (with the non-Client property owner defined as “Owner”), then Client represents that Client either: (i) is entering this Agreement directly in privity with MRI; or (ii) is the duly appointed agent of the Owner and has the authority to enter into and perform the Agreement and use the Software and Services pursuant to the terms set forth in the Agreement. Client shall at all times be solely liable for the payment of all fees and the observance of all obligations, terms and conditions of the Agreement, regardless of any action, inaction or non-payment by any Owner. Client shall keep MRI apprised in writing at all times of the identity and contact information of the Owner, and if Client’s relationship changes with respect to the Owner (by way of example and not by way of limitation, such as if Client’s agency or management relationship with Owner terminates). If Client’s relationship with an Owner or a particular property terminates for any reason, Client shall continue to be liable for any and all fees related to such Owner or property regardless of when such fees are billed by MRI. Client shall immediately notify MRI in the event of any change in ownership or control (including any change in control pursuant to a management contract) of Client, Owner or any of the properties, sites, or communities authorized for use of any Software or SaaS Service. Client shall undertake all reasonable efforts to assist in deactivating the ability of any such sold or transferred properties, sites and communities to use or benefit from any Software or SaaS Service. Client shall remain fully liable for the use of any Software or SaaS Service until proper notification is completed.
“Professional Services” means data conversion, implementation, site planning, configuration, integration and deployment of the Software or SaaS Services, training, project management and other consulting services.
“Protected Materials” means Software, Content, Services, Configurations, license keys and MRI’s or its licensors’ Intellectual Property or Confidential Information.
“SaaS Services” the provision of the Software and/or Content as a service which is hosted by MRI or its hosting providers and which is accessed by Client via the internet, as more fully described in the SaaS Services Schedule and associated Order Document(s).
“Services” means collectively (i) the Professional Services; (ii) Maintenance and Support, and (iii) SaaS Services.
“Software” means collectively the MRI Software and Third Party Software.
“System” means the total package of hardware and Software furnished and/or maintained by MRI.
“Third Party EULA” or “EULA”: the end user license agreement, if any, that accompanies or pertains to the Third Party Software, and that is incorporated into the Agreement, appended to the Order Document or is otherwise published by the third party supplier, and which governs the use of or access by Client to the applicable Third Party Software. A current list of Third Party EULAs may be found at www.mrisoftware.com/EULA , which may be updated from time to time.
“Third Party Software” means software in object code form, including Documentation, Updates and Upgrades (if purchased by Client) , owned by an entity other than MRI which are to be provided to Client by MRI on a pass-through, reseller or OEM basis pursuant to the terms of the EULA.
“Updates” means a new version of the Software, if and when developed after the effective date of the Order Document, which MRI makes generally available to its customers as part of the Maintenance and Support. Updates include bug fixes, patches, error corrections, non-new platform changes, or minor modifications or revisions to the Software that enhance existing performance. Updates exclude Upgrades and new products, modules or functionality for which MRI generally charges a separate fee.
“Upgrade” means a new Software release that may contain (i) new applications; (ii) major functionality enhancements or improvements; and/or (iii) a new platform, which MRI designates as an Upgrade and for which MRI charges a separate license fee or, at MRI’s election, new modules or products, or major releases that include significant feature enhancements or significant architectural modifications for which MRI charges an incremental upgrade fee.
FINANCIAL TERMS
3.1 Fees and Payment Terms. Fees are specified in the applicable Order Document. Fees are exclusive of, and Client is responsible for, shipping costs.
Payment of all fees is due thirty (30) calendar days after the invoice date, unless otherwise agreed in the Order Document. Interest accrues on past due balances at the lesser of a one and a half percent (1½%) per month compounded or the highest rate allowed by law. Client is responsible for providing an accurate billing contact on the Order Document and updating that billing contact as needed from time to time such that MRI always has an accurate billing contact for Client.
If Client fails to make payments of any fees due under the Agreement, Client shall be in material breach of this Agreement. MRI will be entitled to suspend its performance upon ten (10) calendar day written notice to Client and/or to modify the payment terms, and to require full payment before any additional performance is rendered by MRI. Notwithstanding any of MRI’s rights enumerated in Sections 3.1 or 9 of this Master Agreement, if Client fails to timely pay applicable fees under an Order Document, MRI shall be entitled to collect all past and current amounts due and owing, and to accelerate all future amounts to be due, such that all remaining periodic payments for the then current term of the applicable Order Document are immediately due and owing. Client shall be responsible to pay any collection expenses (including attorneys’ fees) incurred by MRI.
Unless expressly provided otherwise, fees paid or payable for Software licenses, SaaS Services or Maintenance and Support are not contingent under any circumstances upon the performance of any Professional Services.
3.2 Taxes. Unless expressly provided otherwise, the prices in the Agreement do not include taxes. Client agrees to pay any taxes, other than those based on MRI’s net income, arising out of the Agreement including goods and services tax imposed on MRI in connection with supplies made under the Agreement. If Client is tax-exempt, Client agrees to send MRI a copy of its tax-exempt certificate prior to execution of a Schedule. Client agrees to indemnify MRI from any liability or expense incurred by MRI as a result of Client’s failure or delay in paying taxes due.
3.3 Travel Expenses. Unless otherwise noted within the Order Document, MRI’s reasonable travel and lodging expenses incurred by MRI in the performance of Services on Client’s site will be billed separately at actual cost.
CONFIDENTIALITY
4.1 Defined. By virtue of the Agreement, the Parties may be exposed to or be provided with certain confidential and proprietary information of the other Party or third parties, including but not limited to information designated as confidential in writing or information which by its nature ought to be in good faith considered confidential and proprietary to the disclosing Party (“Confidential Information”). Confidential Information of MRI and/or its licensors includes but is not limited to the terms and conditions (but not the existence) of the Agreement, including without limitation all Order Documents, fees and charges, all trade secrets, software, source code, object code, specifications, documentation, business plans, customer lists and customer-related information, financial information, proposals, budgets as well as results of testing and benchmarking of the Software or Services, product roadmap, data and other information of MRI and its licensors relating to or embodied in the Software or Documentation. MRI’s placement of a copyright notice on any portion of any Software will not be construed to mean that such portion has been published and will not derogate from any claim that such portion contains proprietary and confidential information of MRI.
4.2 Non-Disclosure. Each Party will protect the other Party’s Confidential Information from unauthorized use or dissemination and use the same degree of care that each such Party uses to protect its own confidential information, but in no event less than a reasonable amount of care. Neither Party will use Confidential Information of the other Party for purposes other than those necessary to directly further the purposes of the Agreement. Neither Party will disclose to third parties Confidential Information of the other Party without prior written consent of such other Party. Notwithstanding anything in this Agreement to the contrary, Client agrees that, upon request by Owner, MRI may communicate directly with the Owner about all aspects of the Agreement, the Client Data, and any other Client Confidential Information, if applicable.
4.3 Exceptions. Information shall not be considered Confidential Information to the extent, but only to the extent, that the receiving Party can establish that such information (i) is or becomes generally known or available to the public through no fault of the receiving Party; (ii) was rightfully in the receiving Party’s possession before receipt from the disclosing Party free of any obligation to keep it confidential; (iii) is lawfully obtained from a third party who has the right to make such disclosure; or (iv) has been independently developed by the receiving Party without reference to any Confidential Information of the disclosing Party.
4.4 Compelled Disclosure. The receiving Party may disclose Confidential Information of the disclosing Party if it is compelled by law to do so, provided the receiving Party gives the disclosing Party sufficient prior notice of such compelled disclosure (to the extent legally permitted) to permit the disclosing Party a reasonable opportunity to object to the compelled disclosure and to allow the disclosing Party the opportunity to seek a protective order or other appropriate remedy. The receiving Party shall provide reasonable assistance, at the disclosing Party’s cost, if the disclosing Party wishes to contest the disclosure.
4.5 Remedy/Injunctive Relief. The Parties acknowledge that disclosure of any Confidential Information may give rise to irreparable injury to the Party whose information is disclosed, which injury may be inadequately compensated in damages. Therefore, either Party may seek injunctive relief against the other Party’s breach or threatened breach of this Section 4 as well as any other legal remedies that are available.
PRIVACY
The Parties agree to comply with the terms of the Data Protection and Security Schedule.
6. LIMITED RIGHTS AND OWNERSHIP
6.1 Reservation of Rights. All rights not expressly granted in the Agreement are reserved by MRI and its licensors. Client acknowledges that: (i) all Software is licensed and not sold and all Content is subscribed to and not sold; (ii) Client acquires only the right to use the Protected Materials and MRI, its licensors, and Content providers shall retain sole and exclusive ownership of all rights, title, and interest in the Protected Materials, including (whether developed by MRI, Client, Client User, or other third party) (a) Intellectual Property embodied in or associated with the Protected Materials, (b) deliverables and work product associated with the Protected Materials, and (c) all copies and derivative works thereof; and (iii) the Protected Materials, including the source and object codes, logic and structure thereof, constitute valuable trade secrets of MRI and its licensors. Client hereby assigns to MRI all right, title and interest in and to Configurations developed by Client, Client User or by any other third party on behalf of Client; however, Client shall retain a license to use such Configurations for so long as Client retains a license to use the Software or SaaS Services, as applicable, used in conjunction with such Configurations. Client agrees to secure and protect the Protected Materials consistent with the maintenance of MRI’s and its licensors’ rights therein, as set forth in this Master Agreement. If Client provides to MRI any ideas, proposal, suggestion or feedback, including without limitation ideas for new products, technologies, promotions, product names, product feedback and product improvements (“Feedback”), Client hereby give to MRI, without charge, royalties or other obligation, the right to make, have made, create derivative works, use, share and commercialize your Feedback in any way and for any purpose. Client agrees to execute such further instruments, and take such further actions as MRI may reasonably request, at MRI’s expense, to apply for, register, perfect, confirm, and protect MRI’s rights. Client shall reimburse MRI for any and all expenses that MRI may incur (including interest, attorneys’ fees and other legal expenses) in connection with MRI’s efforts to enforce its rights against Client with respect to the Protected Materials, or any of MRI’s Intellectual Property rights in the event MRI prevails in such enforcement efforts.
6.2 Restrictions. Client shall not itself, or through any Affiliate, Client User, employee, consultant, contractor, agent or other third party: (i) sell, resell, distribute, host (except Client shall be permitted to host the MRI Software with respect to a perpetual software license), lease, rent, license or sublicense, in whole or in part, the Protected Materials; (ii) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the Software, including the license keys, in whole or in part, for competitive purposes or otherwise; (iii) allow access to, provide, divulge or make available the Protected Materials to any user other than Client Users; (iv) write or develop any derivative works based upon the Protected Materials, except for authorized Configurations; (v) modify, adapt, translate or otherwise make any changes to the Protected Materials or any part thereof; (vi) use the Protected Materials to provide processing services to third parties, or otherwise use the same on a ‘service bureau’ basis; (vii) disclose or publish, without MRI’s prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Protected Materials; or (viii) otherwise use or copy the Protected Materials except as expressly permitted herein.
6.3 Client Data. Notwithstanding anything in this Agreement to the contrary, Client retains sole and exclusive ownership to any and all Client Data.
6.4 License Grant by Client. Client hereby grants to MRI a perpetual, non-cancellable, worldwide, non-exclusive right to utilize any data that arises from the use of the Protected Materials by Client whether disclosed on or prior to the Effective Date for any legitimate business purpose, including the right to sublicense such data to third parties, subject to all legal restrictions regarding the use and disclosure of such information.
6.5 Enforcement. Client shall (i) ensure that all users of Protected Materials comply with the terms and conditions of the Agreement, (ii) promptly notify MRI of any actual or suspected violation thereof and (iii) cooperate with MRI with respect to investigation and enforcement of the Agreement. The Software contains code-based protections that serve to prevent and remedy violations of the license restrictions. If the Software is hosted on Client’s technology systems, MRI may access the Software remotely in order to ensure Client’s compliance with the license terms and other restrictions of the Agreement.
INDEMNIFICATION
7.1 Intellectual Property Infringement. MRI will defend or settle, at its option and expense, any action, suit or proceeding brought against Client by a third party that the MRI Software or SaaS Services infringe a third party’s USA, UK, Australia, or Singapore patent, registered copyright, or registered trademark (“IP Claim”). MRI will indemnify Client against all damages and costs finally awarded or those costs and damages agreed to in a monetary settlement of such action, which are attributable exclusively to such IP Claim, provided that Client: (i) promptly gives written notice of the IP Claim to MRI; (ii) gives MRI sole control of the defense and settlement of the IP Claim; (iii) provides MRI, at MRI’s expense, with all available information and assistance relating to the IP Claim and cooperates with MRI and its counsel; (iv) does not compromise or settle such IP Claim; and (v) is not in material breach of any agreement with MRI.
7.2 Indemnification Exceptions. MRI has no obligation to the extent any IP Claim results from: (i) Client having modified the MRI Software or SaaS Services or used a release other than a current unaltered release of the MRI Software, if such an infringement would have been avoided by the use of a current unaltered release of the MRI Software, (ii) Content and/or any Third Party Software, (iii) Configurations or (iv) the combination, operation or use of the MRI Software or SaaS Services with software or data not provided by MRI.
7.3 Infringement Remedies. If it is adjudicated that an infringement of the MRI Software or SaaS Service by itself and used in accordance with the Agreement infringes any Singapore or USA patent, registered copyright, or registered trademark, MRI shall, at its option: (i) procure for Client the right to continue using the MRI Software or SaaS Service; (ii) replace or modify the same so it becomes non-infringing; or (iii) MRI shall terminate the applicable license or Service and shall refund to Client (a) with respect to a perpetual license to the MRI Software, the license fees for the affected Software, less 1/12 thereof for each month or portion thereof since the original Effective Date, or (b) with respect to SaaS Services and/or limited term Software licenses, the pre-paid portion of the SaaS Services or term license fees paid to MRI for the affected MRI Software or Service. SECTIONS 7.1, 7.2 AND 7.3 STATE MRI’S ENTIRE OBLIGATION TO CLIENT AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT.
7.4 Client Indemnification. Client shall defend MRI against any claim, demand, suit, or proceeding made or brought against MRI by a third party arising out of or related to (i) the Client Data; (ii) Client’s or its users’ use of the Software or the SaaS Services in violation of the Agreement; (iii) Client or any user infringing or misappropriating the Intellectual Property rights of a third party or violating applicable law; or (iv) Client’s or its users’ use or misuse of the Software or SaaS Service or Client’s or its users’ use or misuse of the Client Data (including, without limitation, accessing, providing access, using or distributing the Client Data) (each of the above a “Client Claim”). Client shall indemnify MRI for all damages and costs finally awarded against, and for reasonable attorneys’ fees incurred by, MRI in connection with any Client Claim, or those costs and damages agreed to in a monetary settlement of such Client Claim; provided that MRI (a) promptly gives Client written notice of the Client Claim, (b) gives Client sole control of the defense and settlement of the Client Claim (provided that Client may not settle or defend any Client Claim unless it unconditionally releases MRI of all liability), and (c) provides Client all reasonable assistance, at Client’s cost. For purposes of this Section 7.4 only, “MRI” shall include MRI and its Affiliates, and each of their members, owners, officers, directors, employees, agents, successors and assigns.
8. DISCLAIMERS AND LIMITATION OF LIABILITY.
8.1 Disclaimer of Warranties. THE WARRANTIES, IF ANY, SET FORTH IN THE SCHEDULES ARE IN LIEU OF, AND MRI, ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, CONDITIONS OR OTHER TERM EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTY THAT ANY SOFTWARE, SAAS SERVICE, CONTENT, DELIVERABLES OR OTHER SERVICES ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION OR THAT ALL ERRORS WILL BE CORRECTED; (ii) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, (iii) ANY WARRANTY, CONDITION OR OTHER TERM THAT CONTENT AND/OR THIRD PARTY SOFTWARE WILL BE ACCURATE, RELIABLE AND ERROR-FREE AND (iv) ANY AND ALL IMPLIED WARRANTIES, CONDITION OR OTHER TERM ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ADVICE, STATEMENT OR INFORMATION GIVEN BY MRI, ITS AFFILIATES, CONTRACTORS OR EMPLOYEES SHALL CREATE OR CHANGE ANY WARRANTY PROVIDED HEREIN. ALTHOUGH CERTAIN OF THE SOFTWARE AND CONTENT MAY BE DESIGNED TO HELP CLIENTS COMPLY WITH APPLICABLE LAWS AND REGULATIONS, MRI HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SUFFICIENCY OR ACCURACY OF THE SOFTWARE AND CONTENT IN THIS REGARD; MOREOVER, VARIOUS STATE LAWS MAY APPLY, AND THE SOFTWARE DOES NOT INCORPORATE STATE LAW REQUIREMENTS. ALL SUCH LAWS AND REGULATIONS MAY CHANGE FROM TIME TO TIME, AND THE SOFTWARE AND CONTENT MAY NOT BE UPDATED TO REFLECT SUCH CHANGES. CLIENT SHOULD CONSULT AN ATTORNEY WITH RESPECT TO COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS.
8.2 Connection Over Internet. Client acknowledges that use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent security precautions and illegally gain access to the Services and Client Data. Accordingly, MRI cannot and does not guaranty the privacy, security or authenticity of any information so transmitted over or stored in any system connected to the Internet.
8.3 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, MRI’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES AWARDED UNDER THE AGREEMENT) TO CLIENT FOR ANY CLAIM BY CLIENT OR ANY THIRD PARTIES UNDER THE AGREEMENT, EXCLUDING LIABILITY PURSUANT TO SECTION 7 (Indemnification), WILL BE LIMITED TO (i) WITH RESPECT TO PERPETUAL SOFTWARE LICENSES OR PROFESSIONAL SERVICES, THE FEES PAID BY CLIENT FOR THE SOFTWARE OR SERVICE WHICH IS THE SUBJECT MATTER OF THE CLAIM LESS 1/36 THEREOF FOR EACH MONTH OR PORTION THEREOF SINCE THE EFFECTIVE DATE AND (II) WITH RESPECT TO SAAS SERVICES, TERM LICENSES AND MAINTENANCE AND SUPPORT,THE FEES PAID FOR THE PRIOR TWELVE (12) MONTHS FOR THE SOFTWARE OR SERVICE WHICH IS THE SUBJECT MATTER OF THE CLAIM.
8.4 Third Party Software and Content. From time to time, MRI may utilize Third Party Software and Content in order to deliver the Software or Services to its Clients. Client’s use of the Third Party Software and Content is subject to and Client shall comply with the terms of any applicable Third Party EULAs. The licensors of such Third Party Software are intended third party beneficiaries with rights to enforce the Third Party EULAs. MRI has no control over Third Party Software providers or the availability of the Third Party Software and Content. In its discretion, MRI may add, remove, and/or substitute any Third Party Software. THE PROVISION OF CONTENT IS SUBJECT TO AVAILABILITY FROM THIRD PARTY CONTENT PROVIDERS AND MRI SHALL HAVE NO LIABILITY SHOULD SUCH CONTENT BECOME UNAVAILABLE FOR ANY REASON OR IS NO LONGER AVAILABLE UNDER REASONABLE COMMERCIAL TERMS. PROVIDED THAT MRI IS OTHERWISE IN COMPLIANCE WITH ITS WARRANTY PROVISIONS UNDER THE APPLICABLE SCHEDULES, MRI MAKES NO WARRANTY WITH RESPECT TO ANY THIRD PARTY SOFTWARE OR ANY CONTENT; AND CLIENT’S SOLE REMEDY WITH RESPECT TO SUCH THIRD PARTY SOFTWARE SHALL BE PURSUANT TO THE ORIGINAL LICENSOR’S WARRANTY, IF ANY, TO MRI, TO THE EXTENT PERMITTED BY THE ORIGINAL LICENSOR. CONTENT AND THIRD PARTY SOFTWARE ARE MADE AVAILABLE ON AN “AS IS, AS AVAILABLE” BASIS.
8.5 No Special Damages. IN NO EVENT WILL MRI BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, STAFF TIME, GOODWILL, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT MRI HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.6 Time to Bring Claim. NO CLAIM ARISING OUT OF THE AGREEMENT, REGARDLESS OF FORM, MAY BE BROUGHT AGAINST MRI MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS OCCURRED.
8.7 Survival. THIS SECTION SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDY.
9. TERM AND TERMINATION
9.1 Term. The term of this Master Agreement shall commence on the Effective Date set forth above and shall continue in full force and effect until the expiration or termination of all Schedules, unless otherwise terminated earlier as provided hereunder.
9.2 Termination. Either Party may terminate the Agreement including all Schedules immediately upon written notice in the event that the other Party commits a non-remediable material breach of the Agreement, or if the other Party fails to cure any remediable material breach or provide a written plan of cure acceptable to the non-breaching Party within thirty (30) calendar days of being notified in writing of such breach, except for breach of Section 3.1 (Fees and Payment Terms) which shall have a ten (10) calendar day cure period.
Where a Party has a right to terminate the Agreement, the non-breaching Party may at its discretion either terminate the Agreement or the applicable Schedule. Schedules that are not terminated shall continue in full force and effect under the terms of this Master Agreement.
9.3 Post-Termination Obligations. Following termination of the Agreement or a Schedule (for whatever reason), Client shall certify that it has returned or destroyed all copies of the applicable Software, Content and Confidential Information of MRI and acknowledges that its rights to use the same are relinquished. Termination of this Agreement for any reason shall not excuse Client’s obligation to pay in full any and all amounts due, nor shall termination by MRI result in a refund of fees paid. Client shall use its commercially reasonable efforts to remove all Client Data from any Software or SaaS Service prior to termination of the Agreement or applicable Schedule. Client may engage MRI to assist Client in removing such Client Data at MRI’s then standard rates. If any Client Data remains in the Software or SaaS Service more than thirty (30) calendar days after the effective date of termination, MRI may, in its sole discretion and without notice, delete any and all Client Data. At any time before or after termination, if an Owner requests that any Client Data be provided directly to such Owner, Client agrees that MRI may transfer such Client Data directly to such Owner, and that MRI shall not be liable for any damages that result from the transfer of Client Data to an Owner.
10. GENERAL PROVISIONS
10.1 Publicity. Neither Party shall use the name of the other Party in any publicity without the prior written approval of the other Party, which approval shall not be unreasonably withheld. Each Party shall complete its review of any proposed materials or activities submitted by the other Party within five (5) business days of its receipt of such materials from the other Party. Client approves and agrees it will participate in a joint press release within thirty (30) days of the execution of this Master Agreement.
10.2 Force Majeure. Neither Party shall incur any liability to the other Party on account of any loss, claim, damage or liability to the extent resulting from any delay or failure to perform all or any part of this Agreement (except for payment obligations), if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without any negligence on the part of the Party seeking protection under this Section. Such events, occurrences, or causes shall include, without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquake, fire or explosions (“Force Majeure Events”). Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
10.3 Assignment. MRI may novate, transfer, or assign the Agreement and all of its rights and obligations herein without Client’s approval to its parent company or other affiliated company, to a successor by operation of law, or by reason of the sale or transfer of all or substantially all of its stock or assets to another entity. Neither Party may otherwise assign or transfer the Agreement without the prior written consent of the other Party.
10.4 Notice of U.S. Government Restricted Rights. If the Client hereunder is the U.S. Government, or if the Software is acquired hereunder on behalf of the U.S. Government with U.S. Government federal funding, notice is hereby given that the Software is commercial computer software and documentation developed exclusively at private expense and is furnished as follows: “U.S. GOVERNMENT RESTRICTED RIGHTS. Software delivered subject to the FAR 52.227-19. All use, duplication and disclosure of the Software by or on behalf of the U.S. Government shall be subject to this Agreement and the restrictions contained in subsection (c) of FAR 52.227-19, Commercial Computer Software – Restricted Rights (June 1987)”.
10.5 Export. Client shall comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that the Software is not exported, directly or indirectly, in violation of those laws.
10.6 Non-solicitation. During the term of this Master Agreement and for a period of one year following its termination, Client will not employ or solicit for employment directly or through other parties, without the MRI’s written permission, any individual employed by MRI. If a Party breaches this Section 10.6, such Party shall pay to the non-breaching Party a sum equal to one-hundred fifty percent (150%) of the hired employee’s annual salary while such employee was employed by the non-breaching Party, and such payment shall be made within thirty (30) calendar days of hiring such employee.
10.7 Compliance. During the term of this Master Agreement and for a period of one (1) year following its termination, Client shall maintain and make available to MRI records sufficient to permit MRI or an independent auditor retained by MRI to verify, upon ten (10) calendar days’ written notice, Client’s full compliance with the terms and requirements of the Agreement. Such audit shall be performed during regular business hours. If such verification process reveals any noncompliance by Client with the Agreement, Client shall reimburse MRI for the reasonable costs and expenses of such verification process (including, but not limited to the fees of an independent auditor) incurred by MRI, and Client shall promptly cure any such noncompliance, including without limitation through the payment of any and all fees owed to MRI during the period of noncompliance; provided, however, that the obligations under this Section do not constitute a waiver of MRI’s termination rights. Client acknowledges that the Software may include a license manager component to track usage of the Software and agrees not to impede, disable or otherwise undermine such license manager’s operation.
10.8 Notices. Any notice required or permitted to be sent under the Agreement shall be delivered by hand; by overnight courier; by certified mail, return receipt requested; or in a conspicuous banner to the Client within the product, to the Parties first set forth in the Agreement or to such other address of the Parties designated in writing in accordance with this subsection.
10.9 Relationship. The Agreement is not intended to create a partnership, franchise, joint venture, agency, or a fiduciary or employment relationship. Neither Party may bind the other Party or act in a manner which expresses or implies a relationship other than that of independent contractor.
10.10 Invalidity. If any provision of the Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
10.11 Survival. The following provisions will survive any termination or expiration of the Agreement or a Schedule: Sections 1, 2, 3, 4, 6.1, 6.2, 6.5, 7, 8, 9, and 10.
10.12 No Waiver. Any waiver of the provisions of the Agreement or of a Party’s rights or remedies under the Agreement must be in writing and signed by an authorized representative of each Party in order to be effective. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the Party granting such waiver in any other respect or at any other time. The waiver by either of the Parties hereto of a breach or of a default under any of the provisions of the Agreement shall not be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. The rights and remedies herein provided are cumulative and none is exclusive of any other, or of any rights or remedies that any Party may otherwise have at law or in equity. Failure, neglect, or delay by a Party to enforce the provisions of the Agreement or its rights or remedies at any time, shall not be construed and shall not be deemed to be a waiver of such Party’s rights under the Agreement and shall not in any way affect the validity of the whole or any part of the Agreement or prejudice such Party’s right to take subsequent action.
10.13 Entire Agreement. The Agreement constitutes the Parties’ entire agreement relating to its subject matter. It cancels and supersedes all prior or contemporaneous oral or written communications, agreements, requests for proposals, proposals, conditions, representations, and warranties, or other communication between the Parties relating to its subject matter as well as any prior contractual agreements between the Parties. Client hereby releases and discharges MRI from any and all claims for relief, causes of action, or demands arising out of or in any way relating to any event, act or occurrence prior to the Effective Date of this Agreement. No modification to the Agreement will be binding unless in writing and includes a signature by an authorized representative of each Party. All pre-printed terms of any Client purchase order or other Client business processing document shall have no effect. Each Party represents and warrants to the other that: (i) it has full power, authority, and legal right to execute, deliver, and perform this Agreement, (ii) each signor is duly authorized and has legal capacity to execute and deliver this Agreement and (iii) this Agreement constitutes the legal, valid, and binding obligation of the Parties, enforceable in accordance with its terms.
10.14 No Third Party Beneficiaries This Agreement is for the benefit of the Parties and their successors and permitted assigns, and (except as provide expressly elsewhere in the Agreement) does not confer any rights or benefits on any third party, including any employee of a Party, any client of a Party, or any employee of a client of a Party. Notwithstanding the above, the Parties acknowledge that all rights and benefits afforded to MRI under the Agreement shall apply equally to the owner of the Third Party Software with respect to the Third Party Software, and such third party is an intended third party beneficiary of the Agreement, with respect to the Third Party Software.
10.15 Governing Law and Venue. The Agreement shall be governed by and construed in accordance with the laws of the Republic of Singapore without giving effect to its principles of conflict of laws. Any dispute arising out of or in connection with the Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this sub-Clause (a). The tribunal shall consist of a single arbitrator to be appointed by the Chairman of the SIAC and the language of the arbitration shall be English. Nothing in this Clause 10.15 prevents any party to seek equitable relief (including injunctions or specific performance) from the competent courts of the Republic of Singapore and for this purpose, and the parties submit and agree to the exclusive jurisdiction of the Singapore courts. For purposes of establishing jurisdiction in the Republic of Singapore under this clause 10.15(b) of the Agreement, each party hereby waives, to the fullest extent permitted by applicable law, any claim that: (i) it is not personally subject to the jurisdiction of such court; (ii) it is immune from any legal process with respect to it or its property; and (iii) any such suit, action or proceeding is brought in an inconvenient forum. The parties agree that the Agreement is not a contract for the sale of goods; therefore, the Agreement shall not be governed by the Sale of Goods Act (Cap. 393, Singapore), or any references to the United Nations Convention on Contracts for the International Sale of Goods.
10.16 Legal Fees and Costs. In the event of a dispute between the Parties regarding the enforcement of the Agreement, the prevailing Party in such dispute will be entitled to collect from the other Party the prevailing Party’s reasonable legal fees, expert witness fees, and costs.
10.17 Order of Precedence. To the extent any terms and conditions of this Master Agreement conflict with the terms and conditions of any Schedule, the provisions of this Master Agreement shall control unless the Schedule expressly states the intent to supersede a specific portion of the Master Agreement.
In the event of a conflict between an Order Document and the Master Agreement, the Master Agreement shall prevail, provided, however, that such standard variable terms such as price, quantity, license scope and License Metrics, tax exempt status, payment terms, shipping instructions and the like shall be specified on each Order Document. All pre-printed terms of any Client purchase order or other business processing document shall have no effect.
10.18 Headings and Drafting. The headings in the Agreement shall not be used to construe or interpret the Agreement. The Agreement shall not be construed in favor of or against a Party based on the author of the document.
10.19 Counterparts. The Master Agreement and each Schedule may be executed in one or more counterparts, each of which shall constitute an enforceable original of the Agreement, and that facsimile and/or pdf scanned copies of signatures shall be as effective and binding as original signatures.
10.20 Treatment in the Event of Insolvency of Client. The Parties acknowledge and agree that the Agreement is governed by the Bankruptcy Act (Cap. 20, Singapore) and Companies Act (Cap. 50, Singapore) in the event of bankruptcy or insolvency of Client. Client acknowledges that MRI will be harmed if the Agreement was assigned to a competitor, direct or indirect, or any other party whose use of MRI Software or Services pursuant to the Agreement would be detrimental to the business and rights of MRI, and Client hereby grants MRI the right to consent to any proposed assignment of the Agreement in a bankruptcy or insolvency and that the rights of consent to the assignment shall be subject to (a) section 93(2) of the Bankruptcy Act (Cap. 20, Singapore) in the event of bankruptcy of Client, or (b) Part VIIIA of the Companies Act (Cap. 50, Singapore) in the event of insolvency of Client.
END OF MASTER AGREEMENT
HARDWARE SCHEDULE
This Hardware Schedule is entered into between the MRI Software company named in the attached Order Document (“MRI”) and the Client named in the Order Document, and the authorized representatives of the Parties hereby execute this Master Agreement to be effective as the Effective Date, as defined in the Order Document. As used in this Agreement, “Party” means either Client or MRI, as appropriate, and “Parties” means Client and MRI. This Hardware Schedule applies if the Order Document contains a Hardware License.
1. Definitions
“Documentation” means the user instructions, Functional Specifications, manuals and on-line help files in the form generally made available by MRI, regarding the use of the applicable Hardware.
“Hardware Products” means the MRI hardware products identified in the Order Document.
“Intellectual Property” means any and all intellectual property rights, recognized in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed or recorded, which MRI has created, acquired or otherwise has rights in, and may, in connection with the performance of Services hereunder, create, employ, provide, modify, create, acquire or otherwise obtain rights in.
“Licence Metrics” means the actual purchase of each of the Hardware products as defined in the applicable Order Document by a term such as the number of panels, hubs, and instances and the like.
“Order Document” means the document(s), regardless of its actual name, executed by the Parties which incorporates by reference the Terms and Conditions herein, and describes Client’s order-specific information, such as description and quantity ordered, use and restrictions, fees, milestones, if any.
2. Hardware Products
2.1 Generally. Client may licence the Hardware Products for Client’s own account and not for resale or distribution. Hardware Products may be provided together with software or services, which may or may not be embedded.
3. Intellectual Property Rights.
3.1 General. MRI and its supplier(s) have and will retain all rights, title and interest in any and all intellectual property rights in and to the Hardware Products (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications and derivative works thereof. No rights in copyright, patents, trademarks, trade secrets, or other intellectual property are granted by MRI to Client except as expressly provided under this Agreement. MRI specifically reserves the right to market and distribute Hardware Products directly or indirectly to or through any other person or business entity, in MRI’s sole discretion.
3.2 Restrictions. Except as expressly permitted herein, Client shall not (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer the Hardware Products or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Hardware Products by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, and then only with prior written notice to MRI); (b) distribute, sell, sublicense, rent, lease or use the Hardware Products (or any portion thereof) for time sharing or like purposes; (c) remove any product identification, proprietary, copyright or other notices contained in the Hardware Products or their packaging or related materials; (d) modify any part of the Hardware Products, create a derivative work of any part of the Hardware Products or incorporate the Hardware Products into or with software, except for software provided by MRI or to the extent expressly authorized in writing by MRI; or (e) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Hardware Products.
4. Delivery.
4.1 Delivery Time. The Client acknowledges that the fees outlined in the Order Document do not include shipping costs and the Client may be charged the shipping fees related to the Hardware products which it purchases. Upon the execution of an Order Document (and payment if required by the Order Document) outlining the purchase of Hardware products, MRI or MRI’s authorized representative and/or hardware provider, shall deliver the Hardware products to the Client. In the event that the purchased Hardware product is not promptly available, MRI may (i) switch the purchased Hardware product with a comparable product at no additional cost to the Client; (ii) notify the Client of the unavailability of the Hardware product and work together in good faith to resolve the unavailability; or (iii) terminate the Hardware product portion of the applicable Order Document upon notice to the Client. Client specifically authorized MRI to provide the Client’s Confidential Information to MRI’s authorized representative and/or hardware provider, including without limitation, contact information of the Client and its employees. Title and risk of loss or damage to the Hardware Products will pass to Client upon delivery to Client’s address set out in the applicable Order Document.
5. Limited Warranty
5.1 For a period of one (1) year from delivery, MRI shall repair or replace any Hardware Product that is returned to MRI by the original purchaser freight prepaid and which upon inspection is determined by MRI to be defective in materials or workmanship. MRI’s repair or replacement of a defective Hardware Product as provided in this section is Client’s only and exclusive remedy for a defective Hardware Product and is made subject to the terms of this limited warranty.
5.2 Warranty Exclusions. The foregoing Hardware Product warranty, as applicable, will only apply in the event and to the extent that (a) the Hardware Product is properly and correctly installed, configured, interfaced, maintained, stored, and operated in accordance with MRI’s applicable operator’s manual and specifications, and (b) the Hardware Product is not modified or misused. This Hardware Product limited warranty will not apply to, and MRI shall not be responsible for defects or performance problems resulting from (i) the combination or utilization of the Hardware Product with hardware or software products, information, data, systems, interfaces or devices not made, supplied or specified by MRI; (ii) the operation of the Hardware Product under any specification other than, or in addition to, MRI’s standard specifications for its products; (iii) the unauthorized, installation, modification, repair or use of the Hardware Product; (iv) damage caused by: accident, lightning or other electrical discharge, fresh or salt water immersion or spray (outside Hardware Product specifications); or exposure to environmental conditions for which the Hardware Product is not intended; (v) normal wear and tear on consumable parts (e.g., batteries) or (vi) cosmetic damage. MRI does not warrant or guarantee the results obtained through the use of the Hardware Product.
5.3 Hardware Warranty Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE HARDWARE PRODUCTS, ACCOMPANYING DOCUMENTATION AND MATERIALS ARE PROVIDED “AS-IS” AND WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND, BY EITHER MRI OR ANYONE WHO HAS BEEN INVOLVED IN ITS CREATION, PRODUCTION, INSTALLATION, OR DISTRIBUTION, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NONINFRINGEMENT.
6. Financial Terms.
6.1 Fees and Payment Terms. Fees for Hardware Products are specified in the applicable Order Document. Fees are exclusive of, and Client is responsible for any and all shipping costs. Fees will be valid for the period set forth in the Order Document. If no period is set forth on the Order Document, prices are subject to change upon written notice to Client.
7. Hardware Products Change; Discontinuance. MRI reserves the right to alter the design, functionality, or construction of any Hardware Products, and to discontinue any Hardware Products or the support for any Hardware Products. This right notwithstanding, during the Term, MRI will provide commercially reasonable notice to Client of any changes made to the Hardware Products that would materially affect their functionality or serviceability, and/or of any decision to discontinue production. MRI will use commercially reasonable efforts to provide support services for a discontinued Hardware Products beyond its applicable warranty period on commercially reasonable terms agreed by the parties.
8. Term and Termination.
8.1. Term. Following the end of the Initial Term, Client shall return the Hardware to MRI, freight pre-paid. In the event that the Hardware is lost, stolen, damaged, or not returned within thirty (30) business days following the end of the Term, the Client will be invoiced for the cost of the hardware.
8.2. Termination. Either Party may terminate the Agreement immediately upon written notice in the event that the other Party commits a non-remediable material breach of the Agreement, or if the other Party fails to cure any remediable material breach or provide a written plan of cure acceptable to the non-breaching Party within thirty (30) calendar days of being notified in writing of such breach, except for breach of Section 6.1 (Fees and Payment Terms) which shall have a ten (10) calendar day cure period.
8.3 Survival. The provisions which ought, by their nature to survive termination of the agreement shall survive.
9. Limitation of Remedies and Damages.
9.1 NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
9.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MRI’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CLIENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CLIENT TO MRI UNDER THIS AGREEMENT IN THE YEAR PRECEDING ANY CLAIM OR LAWSUIT.
9.3 THIS SECTION 11 WILL NOT APPLY TO MRI’s CLAIMS INVOLVING A PARTY’S INTELLECTUAL PROPERTY RIGHTS.
9.4 The HARDWARE PRODUCT IS not fault tolerant and ARE not designed, MANUFACTURED, or intended for use in life support, medical, emergency, mission critical or other STRICT LIABILITY OR hazardous activities (“High Risk Activities”). MRI specifically disclaims any express or implied warranty of fitness for High Risk Activities. Client represents and warrants that it will not use the HARDWARE PRODUCTS (or permit THEM to be used) for High Risk Activities, and agrees that MRI will have no liability for use of the HARDWARE PRODUCTS in High Risk Activities. Client agrees to indemnify and hold harmless MRI for any damages, liabilities or other losses resulting from such use.
9.5 The Parties agree that the limitations specified in this Section 11 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
END OF HARDWARE SCHEDULE
PROFESSIONAL SERVICES SCHEDULE
This Professional Services Schedule is entered into between the MRI Software company named in the attached Order Document (“MRI”) and the Client named in the Order Document, and the authorized representatives of the Parties hereby execute this Professional Services Schedule to be effective as the Effective Date, as defined in the Order Document.
1. SERVICES
1.1 Work Authorizations/Statements of Work. MRI will perform the mutually agreed upon Professional Services for Client described in one or more work orders, work authorizations, statements of work or Order Documents (individually and collectively an “SOW”) as the parties may agree to in writing from time to time. Each SOW, once executed by the authorized representatives of the parties, shall become a part of the Agreement. Except as expressly stated elsewhere in this Schedule, in the event of a conflict between the terms of this Schedule and the terms of a SOW, the terms of this Schedule shall prevail.
1.2 Change Orders. Either party may propose a change order to add to, reduce or change the Professional Services ordered in the SOW. Each change order shall specify the change(s) to the Professional Services or deliverables, and the effect on the time of performance and on the fees owed to MRI, due to the change. Once executed by both parties, a change order shall become a part of the SOW.
1.3 Costs. Professional Services shall be provided on a time and materials (“T&M”) basis at MRI’s T&M rates in effect at the time the Professional Services are performed. On a T&M engagement, if an estimated total amount is stated in the applicable SOW, that amount is solely a good faith estimate for Client’s budgeting and MRI’s resource scheduling purposes and not a guarantee that the work will be completed for that amount. If Client wishes the MRI personnel to perform Professional Services at Client’s site, Client agrees it shall give MRI at least two (2) weeks’ prior notice so MRI can make appropriate travel arrangements. Professional Services performed at Client’s site shall be billed to Client in minimum increments of eight (8) hours per day per MRI employee. Fees are based on services, including training services, provided during normal MRI business hours, Monday through Friday, 8:00 a.m. – 7:00 p.m. local time (MRI holidays excluded). Professional Services provided by MRI outside of normal MRI business hours will be subject to a premium service charge of one and one-half of the standard MRI list price for such services. Except as otherwise provided in Section 4.1 herein with respect to training services, if Client cancels a Professional Services engagement specified in an approved SOW less than ten (10) business days before the scheduled start date for such Professional Services, Client shall pay twenty-five percent (25%) of the total estimated costs for Professional Services scheduled for performance between five (5) and ten (10) business days of MRI’s receipt of Client’s cancellation and fifty percent (50%) of any Professional Services scheduled for performance within five (5) business days of such receipt.
1.4 Delays/Costs Overruns. In the event of any delay in Client’s performance of any of the obligations set forth herein or any other delays caused by Client, the milestones, fees and date(s) set forth in the SOW shall be adjusted on a T&M basis as reasonably necessary to account for such delays, and the adjustment shall be made by change order in accordance with the provisions of Section 1.2 above.
2. PROJECT MANAGEMENT
2.1 Responsibility. MRI shall be responsible for securing, managing, scheduling, coordinating and supervising MRI personnel, including its subcontractors, in performing the Professional Services.
2.2 Cooperation. Client shall provide MRI with good faith cooperation and access to such information, facilities, personnel and equipment as may be reasonably required by MRI in order to provide the Professional Services, including, but not limited to, providing security access, information, and software interfaces to Client’s applications, and Client personnel, as may be reasonably requested by MRI from time to time. Client acknowledges and agrees that MRI’s performance is dependent upon the timely and effective satisfaction of Client’s responsibilities hereunder and timely decisions and approvals of Client in connection with the Professional Services. MRI shall be entitled to rely on all decisions and approvals of Client.
2.3 Subcontractors. MRI may subcontract or delegate any work under any SOW to any third party without Client’s prior written consent; provided, however, that MRI shall remain responsible for the performance, acts and omissions of any such subcontractors.
2.4 Client Data. Client Data must be provided to MRI in a format approved by MRI or additional charges will apply. Client is responsible for the accuracy and completeness of its information and Client Data. MRI’s performance is dependent on Client’s timely provision of accurate and complete resources and information, including but not limited to detailed, precise and clear specifications for any deliverables.
2.5 Remote Access. For installation of the System and for any Support of the System, Client shall ensure that MRI’s assigned technical personnel are able to access the System remotely. Client shall be responsible for providing MRI access through any Client security measures. MRI alone shall decide whether access to the System is sufficient for installation purposes. Certain functionality of the System may require connections to or interaction with MRI after such System is running on Client’s infrastructure, and Client agrees to permit and facilitate such connections and interaction. “System” means the total complement of hardware and Software furnished and/or maintained by MRI.
2.6 Testing of Projects. Client shall test any deliverables, and notify MRI of all deficiencies relative to the applicable specifications for such work set forth in the applicable SOW within thirty (30) calendar days following MRI’s delivery of such deliverables to Client (“Notification Period”). Subject to Client’s timely notification and provided that the deficiencies are MRI’s responsibility, MRI will re-perform the applicable Professional Services as required to meet the applicable specifications at no additional charge.
3. LICENSE AND OWNERSHIP
3.1 Ownership. Without prejudice to the provisions of Section 6 (Limited Rights and Ownership) of the Master Agreement, all Intellectual Property including all copies thereof in any Software, other products furnished by MRI and the results of the Professional Services performed by MRI including (without limitation) all deliverables, documentation, training materials, Configurations and all Intellectual Property embodied therein shall, subject to Section 3.2 below, vest solely and absolutely in MRI or its licensors. MRI may access the System remotely in order to copy Configurations to the Software or to otherwise ensure Client’s compliance with the terms of this Section 3.1 and the Agreement.
3.2 Limited License. MRI grants Client, upon full payment of the applicable fees and charges, during the Term and subject to the restrictions set forth in Section 6.2 of the Master Agreement, a personal, nontransferable, nonexclusive, nonsublicensable, limited license , congruous with the license grant set forth in Section 2.1 of the Limited Software License and Maintenance and Support Schedule, to use the deliverables solely for Client’s own internal business needs.
4. SUPPLEMENTAL TERMS FOR TRAINING SERVICES
4.1 General. “Training Courses” are defined as: classroom-based, live virtual, and/or self-paced e-learning courses provided by MRI’s training division called MRI Learning Solutions. Training Courses and their respective prices, policies and schedules are subject to change without notice. Training Courses shall be provided by MRI to Client pursuant to the terms of an SOW. “Named Users” as used herein are defined as Client Users listed in the SOW that shall be eligible to receive Training Courses.
4.2 Cancellation and Transfer Policies
4.2.1 Client Training Course Cancellation Policy. “Client Training Courses” means non-publicly offered Training Courses delivered specifically for Client and held at a mutually agreed upon time and location. Client Training Courses may be delivered in a physical classroom at a location determined by mutual agreement or through a live virtual classroom. Details regarding delivering Client Training Courses shall be set forth in an approved SOW. For Client Training Courses to be provided at an onsite classroom that are canceled by Client: (i) ten (10) or more business days prior to the course start date, MRI will provide a full refund or credit; or (ii) within the ten (10) business day period before the course start date, fifty percent (50%) of the course fee will be forfeited and MRI will provide the remainder as a refund or credit.
4.2.2 Physical Classroom Public Training Course Cancellation Policy. “Public Training Courses” means publicly offered Training Courses that are not delivered specifically for Client. Public Training Courses may be delivered in a physical classroom or through a live virtual classroom. Registered attendees for a physical classroom Public Training Course who cancel less than ten (10) business days prior to the course start date will forfeit all applicable Training Course fees; however, transfers to another person are permitted up to one (1) business day prior to the course start date. In order to transfer a physical classroom Public Training Course attendance spot, contact MRI Learning Solutions at 1.800.321.8770 ext. 1 or email learning@mrisoftware.com. MRI reserves the right to cancel any physical classroom Public Training Course class up to ten (10) business days prior to the course start date for any reason. If MRI cancels a physical classroom Public Training Course class and is unable to reschedule the attendee, MRI will refund to such attendee all applicable Training Course fees. MRI assumes no responsibility for non-refundable airline tickets or other expenses that may be incurred due to cancellation of a physical classroom Public Training Course.
4.2.3 Live Virtual Classroom Public Training Course Cancellation Policy. Registered attendees for a live virtual classroom Public Training Course program will receive a web-conferencing invitation on the day prior to the start of the program. Registered attendees who cancel less than twenty-four (24) hours before the scheduled start date and time will not be refunded any applicable Training Course fees. However, transfers to another person are permitted up to the starting time of the program. In order to transfer a live virtual classroom Public Training Course attendance spot, contact MRI Learning Solutions at 1.800.321.8770 ext. 1 or email learning@mrisoftware.com. MRI reserves the right to cancel any live virtual classroom Public Training Course class for any reason. If MRI cancels a live virtual classroom Public Training Course class and is unable to reschedule the attendee, MRI will refund to such attendee all applicable Training Course fees.
4.2.4 Self-Paced e-Learning Training Course Cancellation Policy. “Self-Paced e-Learning Training Courses” means publicly offered Training Courses that have no set time or location, and can be taken by any person at any time at the MRI Learning Solutions website. Self-Paced e-Learning Training Courses are non-cancelable and applicable fees are non-refundable. All sales of Self-Paced e-Learning Training Courses are final and non-transferable.
4.3 Use Limitations; Monitoring. Unless otherwise explicitly agreed in writing by MRI, Client is only allowed user access rights to any Training Course up to the number of Named Users purchased as shown in an executed SOW. Client and Named Users may not share access rights, or any Training Course content, with others and may only access the Training Course for personal training use as specifically permitted. To the extent permitted by law, MRI may monitor, suspend or terminate Client’s or any Named User’s use of any Training Course and/or training account, or terminate this Schedule or the applicable SOW, or remove or disclose Client’s or any Named User’s information in order to ensure Client’s and all Named Users’ compliance with the Agreement or to otherwise protect MRI rights or rights of others. If Client or any Named User does not comply with the restrictions set forth in this Section 4.3, Client may be charged additional fees equivalent to the resulting usage fees for the related services incurred.
5. TERMINATION
This Schedule may be terminated in accordance with Section 9 of the Master Agreement.
Where the non-breaching Party has a right to terminate this Schedule, the non-breaching Party may at its discretion either terminate this Schedule, or the applicable SOW.
Upon termination for any reason, all work products, including all drafts and works in progress of deliverables, shall be delivered to Client. Upon MRI’s receipt of a notice of termination, MRI shall cease and shall cause any agent or subcontractor to cease all work under the applicable SOW and minimize any additional costs or reimbursable expenses unless otherwise agreed in writing by the Parties. Except as may be expressly set forth in the applicable SOW, Client shall pay MRI fees for services performed to the date of termination on a T&M basis together with any expenses reasonably incurred in connection therewith. The Parties’ obligations under this Section 5 and Section 3 of this Schedule and the surviving provisions of the Master Agreement shall survive any termination of this Schedule.
END OF PROFESSIONAL SERVICES SCHEDULE
Version 2 – May 2026