The terms and conditions contained in this Sapphire Cloud Terms of Service (“Agreement”) govern Customer’s and its Authorized Users’ (defined below) access to and use of any of the software modules contained within MiTek’s Sapphire Suite of software that are hosted through a cloud service provider, currently, Peak Uptime. The specific software modules, locations, pricing and other terms for MiTek’s Sapphire Suite of software are separately set forth in the underlying License & Agreement between MiTek Inc. (“MiTek”) and Customer.
(a) “Authorized User” means Customer and Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Cloud Services under the rights granted to Customer pursuant to this Agreement.
(b) “Cloud Services” means the third-party hosting services provided through MiTek under this Agreement.
(c) “Customer Data” means information, data, and other content that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Cloud Services.
(d) “MiTek IP” means the Cloud Services, MiTek’s Sapphire Suite of software, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, MiTek IP includes any information, data, or other content derived from MiTek’s monitoring of Customer’s access to or use of the Cloud Services, but does not include Customer Data.
2. Access and Use.
(a) Provision of Access. Subject to the terms and conditions of this Agreement and the License & Agreement, MiTek hereby grants Customer a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Cloud Services during the Term solely for Customer’s internal business operations by Authorized Users in accordance with the terms and conditions herein. MiTek shall provide Customer the necessary passwords and access credentials to allow Customer to access the Cloud Services.
(b) Use Restrictions. Customer shall not, and shall not permit any Authorized Users to, use the Cloud Services or any software component of the Cloud Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Cloud Services or any software component of the Cloud Services, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Cloud Services except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Cloud Services, in whole or in part; (iv) remove any proprietary notices from the Cloud Services; or (v) use the Cloud Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule.
(c) Reservation of Rights. MiTek reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the MiTek IP.
(d) Suspension. Notwithstanding anything to the contrary in this Agreement, MiTek may temporarily suspend Customer’s and any other Authorized User’s access to any portion or all of the Cloud Services if: (i) MiTek reasonably determines that (A) there is a threat or attack on any of the MiTek IP; (B) Customer’s or any other Authorized User’s use of the Cloud Services disrupts or poses a security risk to the MiTek IP or to any other customer or vendor of MiTek; (C) Customer or any other Authorized User is using the Cloud Services for fraudulent or illegal activities; (ii) any vendor of MiTek has suspended or terminated MiTek’s access to or use of any third-party services or products required to enable Customer to access the Cloud Services; or (iii) in accordance with Section 4 for non-payment of Fees. MiTek will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Customer or any other Authorized User may incur as a result of a suspension of services hereunder.
(e) Hosting. Customer acknowledges that the Cloud Services operate on one or more third party cloud computing platforms and that MiTek shall have the right to change or add to the cloud computing platforms on which its Cloud Services operate.
(f) Service Levels. Subject to the terms and conditions of this Agreement, MiTek shall use commercially reasonable efforts to make the Cloud Services available in accordance with the service levels available at https://support.mii.com/help/sapphire-cloud-service-levels (“Service Levels”).
(g) Updates and Maintenance. As part of the Cloud Services, MiTek will update and maintain the Sapphire Suite of software for Customer with all updates that MiTek makes generally available to its customers. Upon notification from MiTek, Customer shall promptly update any locally-installed software agents on Customer’s systems that interact with the Cloud Services. With regard to Cloud Services that require the use of mobile applications by an Authorized User, Customer shall ensure that all Authorized Users promptly download and install all available updates for the mobile applications. Customer acknowledges and agrees that its failure to timely install such an update may result in disruptions to or failures of the Cloud Services.
3. Customer Responsibilities.
(a) Acceptable Use. The Cloud Services may not be used for unlawful, fraudulent, offensive, or obscene activity. Customer will, and will cause its Authorized Users to, comply with all terms and conditions of this Agreement, and all applicable laws, rules, and regulations regarding the use of the Cloud Services.
(b) Account Use. Customer is responsible and liable for all uses of the Cloud Services resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer.
(c) Customer Data. Customer hereby grant to MiTek a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for MiTek to provide the Cloud Services to Customer. Customer will ensure that Customer Data and any Authorized User’s use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. Customer are solely responsible for the development, content, operation, maintenance, and use of Customer Data.
(d) Passwords and Access Credentials. Customer is responsible for keeping its passwords and access credentials associated with the Cloud Services confidential. Customer will not sell or transfer them to any other person or entity. Customer will promptly notify MiTek about any unauthorized access to Customer’s passwords or access credentials.
4. Fees and Payment. For the Cloud Services, Customer shall pay MiTek the fees as described in the License & Agreement (“Fees”) without offset or deduction. If Customer fails to make a payment when due and such failure continues for fourteen (14) days or more, MiTek may suspend, in accordance with Section 2(d) above, Customer’s and all other Authorized Users’ access to any portion or all of the Cloud Services until such amounts are paid in full.
5. Confidential Information. From time to time during the Term, MiTek and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, and other sensitive or proprietary information (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are obligated to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order. Each party’s obligations of non-disclosure with regard to Confidential Information will expire two years after the expiration or termination of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
6. Intellectual Property Ownership; Feedback. As between the parties, (a) MiTek owns all right, title, and interest, including all intellectual property rights, in and to the MiTek IP; and (b) Customer owns all right, title, and interest, including all intellectual property rights, in and to Customer Data. If Customer or any of its Authorized Users, employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the MiTek IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), MiTek is free to use such Feedback, without any attribution or compensation to Customer or any third party.
(a) Service Levels. MiTek warrants that the Cloud Services will conform in all material respects to the Service Levels when accessed and used by Customer in accordance with this Agreement. MiTek does not make any representations or guarantees regarding uptime or availability of the Cloud Services unless specifically identified in the Service Levels. The remedies set forth in the Service Levels are Customer’s sole remedies and MiTek’s sole liability under the limited warranty set forth in this section.
(b) Security. MiTek warrants that the Cloud Services are not designed to contain viruses, worms, Trojan horses or other unintended malicious or destructive code, or any code designed to intentionally cause the Cloud Services to stop functioning. MiTek further warrants that it shall maintain and enforce reasonable safety, data backup, and security procedures in providing the Cloud Services that are consistent with applicable industry standards for such type of cloud services. MiTek will use its commercially reasonably efforts to notify Customer within forty-eight hours of any security breach involving Customer Data, and will work cooperatively with Customer to determine the cause and scope of the breach and efforts to remediate it. The foregoing warranties are void if the failure of the Cloud Services has resulted from negligence, error, or misuse of the Cloud Services by Customer or the Authorized User. Customer shall be required to report any breach of warranty to MiTek within a period of thirty (30) days of the date on which the incident giving rise to the claim occurred. MiTek’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for breach of this warranty will be for MiTek, at its expense, to use reasonable commercial efforts to correct such nonconformity within thirty (30) days of the date that notice of the breach was provided; and, if MiTek fails to correct the breach within such cure period, Customer may terminate this Agreement and, in such event, MiTek shall provide Customer with a pro-rata refund of any unused pre-paid fees paid for the period following termination as calculated on a monthly basis.
(c) EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE CLOUD SERVICES ARE PROVIDED “AS IS” AND MITEK SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. MITEK MAKES NO WARRANTY OF ANY KIND THAT THE CLOUD SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF CUSTOMER’S OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
8. Limitations of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL MITEK’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO MITEK FOR CLOUD SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $100,000, WHICHEVER IS LESS.
9. Term and Termination. This Agreement shall terminate: (i) upon thirty (30) days written notice by either party in the event of any uncured material default by the other party under this Agreement; (ii) upon ninety (90) days written notice by either party for its convenience; (iii) upon the expiration or termination of the underlying License & Agreement between the parties that is the subject of the Cloud Service; (iv) upon written notice should MiTek or (v) immediately, in the event an assignment is made of Customer’s business for the benefit of its creditors or if a receiver or trustee in bankruptcy shall be appointed to take charge of all or part of Customer’s property. No termination of this Agreement shall alter or modify in any manner any obligations then accrued, nor shall any termination limit or in any way prejudice any other remedies, legal or equitable, arising hereunder or by operation of law. Upon termination, Customer will immediately discontinue all use of the Cloud Services.
10. Transitions. MiTek will assist Customer if Customer decides to end access to the Sapphire Suite of software through the Cloud Services and move to a self-hosted environment. In the event that Customer terminates the Cloud Services together with the License & Agreement, then MiTek will reasonably cooperate with Customer at its standard hourly rates to provide Customer access to its information in an accessible format for a period of up to three (3) months following termination.
11. No Assignment; No Third Party Beneficiaries. Neither this Agreement nor any license or other rights or duties of Customer hereunder may be assigned, sublicensed, delegated or otherwise transferred by Customer without MiTek’s prior written consent, which consent shall not be unreasonably withheld or delayed by MiTek. Any purported assignment, sublicense or other transfer without such consent is null and void. MiTek may assign its interests in and delegate its duties under this Agreement to any of its affiliates. There are no intended third party beneficiaries of this Agreement.
12. Amendment, Waiver, Etc.; Entire Agreement. This Agreement may not be modified, amended, rescinded, canceled or waived, in whole or in part, except by a subsequently dated written instrument signed by both parties hereto. This Agreement supersedes all proposals, oral or written, and all negotiations, conversations or discussions heretofore had between the parties, and is the entire Agreement between the parties relating to the subject matter hereof. Customer acknowledges that it has not been induced to enter into this Agreement by any representations, statements, oral or written, not expressly contained herein.
13. Controlling Law. This Agreement shall be construed in accordance with, and in its performance governed by, the substantive laws of the State of Missouri, without regard to the choice of law principles of said state.
14. Compliance With Law. Customer shall comply with all applicable federal, state, local, and foreign laws and regulations in connection with its activities under this Agreement, including without limitation, the U.S. Foreign Corrupt Practices Act (FCPA), UK Bribery Act, and export control laws. In addition, Customer shall conduct itself in a manner consistent with the principles set forth in Berkshire Hathaway’s Code of Business Conduct and Ethics, a copy of which is available upon request.
15. Export Controls. In the event MiTek grants Customer permission to install or use the Software Products outside of the United States, Customer agrees that the Software Products will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the “Export Laws”). In addition, if the Software Products are identified as export controlled items under the Export Laws, Customer represents and warrants that it is not a citizen of, or located within, an embargoed or otherwise restricted nation (including, without limitation, Iran, Syria, Sudan, Libya, Cuba and North Korea) and that Customer is not otherwise prohibited under the Export Laws from receiving the Software Products. All rights to use the Software Products are granted on condition that such rights are forfeited if Customer fails to comply with the terms of this Agreement.
16. U.S. Government End Users. The Software Products are “commercial items” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R.12.212 and 48 C.F.R. 227.72021 through 227.72724, all U.S. Government end users acquire the Software Products with only those rights set forth therein and in this Agreement, and do not acquire any other right, title or interest, express or implied, in or to any of the Software Products.