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END USER LICENSE AGREEMENT

This End User License Agreement (this “Agreement”) is a legal contract between you (whether an individual or an entity “you” and “your”) and MSuite Corporation, a Delaware corporation (“we”, “us”, and “our”).

BY CLICKING THE “ACCEPT” BUTTON BELOW, OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, THE INDIVIDUAL CLICKING THE “ACCEPT” BUTTON, DOWNLOADING, INSTALLING, OR OTHERWISE USING THE SOFTWARE REPRESENTS AND WARRANTS THAT SUCH PERSON HAS THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ENTITY AND BIND THE ENTITY TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE. THE SOFTWARE IS LICENSED, NOT SOLD, TO YOU.

If you or your organization has executed a master software agreement or similar written agreement with us, such written agreement shall control and take precedence over this agreement to the extent the two agreements conflict.

  1. Introductory Provisions.
    • Any software we provide to you is referred to collectively in this Agreement as the “Software”. The technical specifications and descriptions of the functionalities of the Software is contained in the documentation found on our website or delivered with the software.
    • We may offer one or more of our software applications as part of the Software, including future Software.
    • We may change the Software, including its functions, functionality, and/or the applicable documentation while this Agreement is in effect by means of Updates (as defined below). You agree that by implementing or installing an Update, you will be deemed to have accepted of such changes, with your sole recourse being to immediately cease the use of the Software.
    • This Agreement regulates the rights and obligations of you and us relating to your use of the Software, as well as the rights and obligations of you and us relating to the provision of Support Services (defined herein) as described in Article 3.
  2. License Grant and Scope.
    • Upon payment of any applicable fees therefor, we grant to you a limited, non-exclusive, and nontransferable license (the “License”) to download, install, and use the Software and documentation for your own internal business purposes in accordance with this Agreement and pursuant to the other terms and policies of the specific Software as indicated on our website and in the documentation for the Software. The License may be delivered to you by issuance of a software license key.
    • Unless otherwise expressly provided herein, and in addition to the use restrictions set forth in Article 3 below, you shall not yourself, or through any other party:
  3. copy the Software, except as expressly permitted by the License;
  4. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software, unless the source code of the Software has been provided to you by us, and in such event, you shall only be permitted to modify those portions of the Software for which you have received the source code from us;
  5. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof, insofar as the source code of the Software is not made available to you;
  6. remove, alter, delete, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Software, including any copy thereof;
  7. permit any third party to acquire or view the source code of the Software, even if the source code is available to you;
  8. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, the source code of the Software, or any features of functionality of the Software, to any third party for any reason, including by making the Software available on a network where it is capable of being accessed by any unauthorized user; or
  9. remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Software.
    • Your use of the Software must comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, your use of the Software must not:
  10. Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
  11. Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
  12. Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.
  13. Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, the Terms of Use, and our Privacy Policy.
  14. Be likely to deceive any person.
  15. Promote any illegal activity, or advocate, promote or assist any unlawful act.
  16. Give the impression that it emanates from or is endorsed by us or any other person or entity, if this is not the case.
    • You agree to operate the Software in accordance with any Acceptable Use Policy we may publish from time to time (the “Acceptable Use Policy”). We may change the Acceptable Use Policy to add restrictions on your use of the Software by posting and/or updating the Acceptable Use Policy on our website. You are encouraged to routinely check the Acceptable Use Policy for changes. Any change to the Acceptable Use Policy made during the term of this Agreement will be automatically binding on you unless you provide a written notice of termination of this Agreement to us within 30 days of such change becoming effective. If you terminate this Agreement because a change in the Acceptable Use Policy materially and adversely effects you, we shall issue a prorated refund for any prepaid subscription license fees. Any one-time license, implementation, or other fees will not be refunded.
    • The Software is provided to you under a license and is not sold to you. You acknowledge and agree that we reserve and shall retain our entire right, title, and interest in and to the Software, its source code and all copies thereof, including, without limitation, any related copyrights, trademarks, trade secrets, patents, and other intellectual property rights. You shall have no right to the Software, the source code, documentation or any modifications except to the extent expressly granted in this Article 2.
  17. Support Services; Updates.
    • We may provide support services to you pursuant to the terms of the Software subscription or as otherwise provided on our website or agreed upon in a master agreement between you and us (the “Support Services”). Support Services consist of solving functional and user problems of the Software including providing technical support as further described on us.
    • We may from time to time in our sole discretion develop and provide Software updates, which may include upgrades, bug fixes, patches, and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionalities. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionalities. If an Update is available, you acknowledge and agree that the Software may not operate properly until the Update is installed. You acknowledge and agree that Updates will be deemed to be part of the Software and will be subject to the terms and conditions of this Agreement.
  18. Payment Terms; Renewal.
    • In return for the provision of the License to you according to Article 1 of this Agreement, you agree to pay the fees associated therewith, as listed (i) on our website or on the installation or registration page of the Software, (ii) in an agreement executed between you and a reseller, sales agent, or other independent contractor associated with us, or (iii) in a master software agreement or other written agreement executed between you and us, as applicable.
      • If you purchase a subscription package for the Software, you shall pay the License fee therefor at the time this Agreement becomes effective. License fees are payable to us in advance on the renewal date applicable to you. Subscription packages carry a one-year term and will automatically renew at the end of the term at the then-current rate. You can cancel your subscription at any time via written communication to us at support@msuite.com; however, cancellations will not take effect until 60 days after we receive your cancellation notice, so to prevent automatic renewal you must provide notice at least 60 days prior to the scheduled renewal date. If you cancel a subscription, you will continue to have access to the Software through the end of the subscription period that is in effect as of the effective date of termination, but you will not be entitled to a refund or credit for any subscription fee already paid.
      • If you purchase a subscription package for the Software, you shall provide us a credit card or other payment account information and authorizes us to maintain such information on file and to charge such payment account in accordance with the terms of the applicable subscription.
    • Upon your request, we shall issue a proper invoice to you in respect of payments made on the basis of this Agreement. Prices are exclusive of any taxes. You shall pay any applicable value added, goods and services, sales, or like taxes that are owed with respect to any order placed under this Agreement and which we are permitted to collect from you under applicable law.
    • In the event that you are overdue with the payment of any other fees due to us hereunder, we shall be entitled to interest on late payment amounting to the greater of (i) 10% per annum, to be compounded daily and (ii) the maximum rate permissible by applicable law.
  19. Third Party Equipment.

The Software may include the ability to integrate or connect with third party software (“Third Party Software”). You acknowledge and agree that we do not operate, control, or maintain any Third Party Software and we make no representation or warranty in respect to the Third Party Software or how our Software functions with any Third Party Software. Your use of any Third Party Software will be governed by the End User License Agreement, Terms of Use, or other applicable agreement with the relevant third party, and you acknowledge and agree that your use of the Third Party Software is contingent upon your review of and consenting to the applicable agreement prior to such use. In addition, some of the integrations with Third Party Software may allow you to interact with or control physical equipment manufactured or provided by a third party (“Third Party Equipment”). YOU ACKNOWLEDGE AND AGREE THAT WE CANNOT AND DO NOT ACCEPT ANY RESPONSIBILITY FOR THE OPERATION OF THE THIRD PARTY SOFTWARE OR THIRD PARTY EQUIPMENT, AND AS BETWEEN YOU AND US, YOU ACCEPT SOLE AND COMPLETE RESPONSIBILITY FOR ANY LOSS WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE, INJURY, OR DEATH OCCURRING FROM YOUR USE OF THIRD PARTY SOFTWARE OR YOUR INTERACTIONS WITH OR CONTROL OF THIRD PARTY EQUIPMENT USING THE SOFTWARE.  YOU AGREE TO READ AND COMPLY WITH ALL USER GUIDES OR DOCUMENTATION MADE AVAILABLE BY THE PROVIDERS OF THE THIRD PARTY SOFTWARE AND THIRD PARTY EQUIPMENT AS WELL AS ANY USER GUIDES OR DOCUMENTATION WE PROVIDE FOR THE SOFTWARE PRIOR TO USING THE SOFTWARE TO ACCESS ANY THIRD PARTY SOFTWARE AND/OR INTERACT WITH OR CONTROL ANY THIRD PARTY EQUIPMENT.

  1. Termination of this Agreement.
    • Unless terminated sooner pursuant to this Section 6, this Agreement and the license granted hereunder shall remain in effect until the termination of the subscription term as set forth in Section 4.
    • We may terminate this Agreement at any time for any reason upon thirty (30) days’ written notice, or sooner if reasonably required by us. In the event of a termination of this Agreement by us for any reason other than a breach of this Agreement by you, you will receive a prorated refund for any prepaid but unused subscription fees.
    • Either you or we may terminate this Agreement if the other party is in breach of this Agreement and fails to cure such breach within ten (10) days after written notice of the breach to the other party. In addition, we may, as an alternative to termination, suspend your License to the Software and Software documentation and/or our obligations under this Agreement, if you fail to make a payment to us or otherwise fails to comply with the terms of this Agreement or other terms relating to any such License, service or other associated materials. We may also terminate this Agreement if you become subject to bankruptcy proceedings or become insolvent. This Agreement will terminate automatically without further notice or action by us if you go into liquidation. Suspension of the License shall include suspension of the operation of a website administered with the use of the Software. Any limitation of the ability to use the Software due to the provisions of this Article 6 does not affect our right to receive License fee(s) or fees for the provision of Support Services according to this Agreement.
    • Upon termination of this Agreement, the License granted hereunder will terminate. Upon termination of any License granted you, you must cease all use of our materials to which such License applies and you must delete or destroy all reproductions of the Software obtained under this Agreement, regardless of their form. We reserve the right to require you to show satisfactory proof that all copies of the Software have been uninstalled and, if so requested by us, destroyed or returned to us at our option.
    • Any provision of this Agreement related to confidentiality, limitation of liability, publicity and indemnification or which by its terms provides for survival shall survive the termination of this Agreement.
  2. Assignment of Rights by You.

You may not assign or otherwise transfer this Agreement or the Software, including without limitation via sale, merger, change in control, by operation or law or otherwise, without our prior written consent, and any such purported assignment or transfer shall be null and void and shall automatically terminate this Agreement.

  1. Other Rights and Obligations.
    • During the term of this Agreement, you grant us a nonexclusive, royalty-free, sublicensable, worldwide license to use your business name, trade name, and logo to identify you as a user of the Software and our client.
    • You acknowledge and agree that we may assign or subcontract any of our rights or obligations under this Agreement.
    • You agree to:
  2. make available to us monthly usage and quality measure statistics for the Software;
  3. provide any access or integration assistance necessary to allow us to install or otherwise deploy the Software for you;
  4. provide access and any necessary rights/permissions to us to allow us to monitor the performance of the Software, including access to any logs such as error logs in order to perform troubleshooting and problem diagnostics, and to determine usage patterns and analyze product usage for future enhancements;
  5. ensure that any necessary Updates provided to you are properly installed or applied promptly after they become available, and to provide us with all necessary and appropriate access and assistance to install such Updates;
  6. properly maintain any equipment or networks hosted by you that the Software is installed or otherwise used on; and
  7. make commercially reasonable efforts to implement anti-virus and anti-hacking software to protect data and ensure that no virus will get into any computer system through your technology infrastructure.
    • To better serve our customers, we may collect and utilize usage and performance data to facilitate problem trouble shooting and to enhance application features. Usage data may also be used in aggregate to establish usage trends for marketing purposes.
  8. Disclaimer of Warranties.

THE SOFTWARE IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE, ON OUR OWN BEHALF AND ON BEHALF OF OUR AFFILIATES AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, WE PROVIDE NO WARRANTY OR UNDERTAKING, AND MAKE NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

  1. Limitation of Liability.

Any liability we have to you in connection with this Agreement, under any cause of action or theory, is strictly limited to, in aggregate for all violations, the amount paid to you by us for your use of the Software in the six month period immediately preceding the events giving rise to the claim. Without limiting the previous sentence, in no event shall we or any of our affiliates be liable to you for any indirect, special, incidental, consequential, punitive, or exemplary damages arising out of or in connection with, this Agreement. The foregoing limitations apply whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if we or our affiliates have been advised of the possibility of such damages.

Some jurisdictions do not allow the exclusion or limitation of incidental or consequential; therefore, the above limitations may not apply to you. In such jurisdictions, our liability is limited to the greatest extent permitted by law.

 

  1. Indemnification.

You agree to indemnify, defend and hold us and our officers, directors, employees, agents, affiliates, successors and assigns harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to your use or misuse of the Software or your breach of this Agreement. Furthermore, you agree that we assume no responsibility for the content you submit or make available through the Software.

  1. Third Party Copyright.
    • You acknowledge that the Software contains objects protected by copyright and that the bearers of copyright rights to these objects are third parties.
    • We state that the inclusion of each object protected by copyright in the Software according to Article 1 of this Agreement is in accordance with the License terms under which we have obtained the right to include such object in the Software.
    • You acknowledge that the use of each object protected by copyright according to Article 1 of this Agreement is governed by license arrangements with third parties. YOU WILL INDEMNIFY US FOR ANY COSTS, INCLUDING ATTORNEYS FEES, ARISING FROM ANY CLAIMS AGAINST US DUE TO YOUR ACTIONS WHICH ALLEGEDLY VIOLATE THE TERMS OF SUCH LICENSE AGREEMENTS.
  2. Protection of Information.
    • Unless expressly agreed otherwise by the parties in writing, all of our information which is subject to protection as a trade secret under applicable law shall implicitly be deemed confidential, including but not limited to any principles, methods and processes that the Software is based on (including the source code of the Software) or our other technical know-how (collectively, “Confidential Information”). License keys are Confidential Information hereunder. Confidential Information shall further include pricing, documentation and information that you obtain when using our Support Services.
    • We permit the Software to be installed and/or accessed only by your authorized personnel and any other persons who may have access to the Software and/or Software documentation through you, and any such installation or access will be subject to any other requirements imposed in this Agreement. You will be responsible for compliance with this Agreement by your personnel and any other persons who may have access to the Software and/or Software documentation through you.
    • You shall not disclose our Confidential Information. Without our written consent, you shall not use Confidential Information for yourself or third parties except as to exercise your rights under this Agreement. Such obligation shall also extend to your employees, officers, agents, representatives, statutory bodies, members of statutory bodies, members of the supervisory board, members or other persons to whom you have granted access to the Software. YOU WILL INDEMNIFY US FOR ANY COSTS, INCLUDING ATTORNEYS FEES, ARISING FROM ANY CLAIMS AGAINST US DUE TO YOUR ACTIONS WHICH ALLEGEDLY VIOLATE THE TERMS OF THIS ARTICLE 13.
    • If you are provided with a user name, password or any other piece of information as part of our security procedures for a registered user account on our website, you must treat such information as Confidential Information, and you must not disclose it to any other person or entity. You also acknowledge that your registered user account is personal to you and agree not to provide any other person with access to your registered user account. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security.
    • Information which has become known to the public without any fault on the part of the receiving party shall not be considered to be Confidential Information according to this Article 13.
    • The provisions of this Article 13 shall survive any termination or cessation this Agreement (for whatever reason).
  3. Governing Law.

This Agreement is governed by Iowa law, without giving effect to conflicts of law principles. You agree that, to the extent applicable and expressly subject to the dispute resolution provisions below, to submit to the exclusive jurisdiction of the state and federal courts located in Cedar Rapids, Iowa in circumstances where this Agreement permits litigation in court.

  1. Dispute Resolution.

Please read this section carefully. It contains procedures for mandatory binding arbitration and a class action waiver.

  • Notice Requirement and Informal Dispute Resolution.Before either we or you may seek arbitration, the party seeking arbitration must send the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute and the requested relief.  A Notice to us should be sent to: MSuite Corporation, 311 3rd Ave SE, Ste 450, Cedar Rapids, IA 52401. After the Notice is received, you and we may attempt to resolve the claim or dispute informally.  If we do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

 

  • Arbitration Rules.Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section.  If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider.  The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with this Agreement.  The AAA Commercial Arbitration Rules (the “Arbitration Rules”) governing the arbitration are available online at adr.org or by calling the AAA at 1-800-778-7879.  The arbitration shall be conducted by a single, neutral arbitrator.  Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) shall be resolved through binding non-appearance-based arbitration.  For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in Cedar Rapids, Iowa, unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.  Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.

 

  • Additional Rules for Non-Appearance Based Arbitration.The arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration.  The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.

 

  • Time Limits.If either you or we pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.

 

  • Authority of Arbitrator.If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of the parties involved, and the dispute will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator shall have the authority to grant motions dispositive of all or part of any claim.  The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and this Agreement.  The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have.  The award of the arbitrator is final and binding upon you and us.

 

  • Waiver of Jury Trial.THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Agreement.  Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court.  In the event any litigation should arise between you and us in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND WE WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

 

  • Waiver of Class or Consolidated Actions.ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS SECTION 15 MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.

 

  • Confidentiality.All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential.  You agree to maintain confidentiality unless otherwise required by law.  This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Section 15, to enforce an arbitration award, or to seek injunctive or equitable relief.

 

  • Severability.If any part or parts of this Section 15 are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of this Section 15 shall continue in full force and effect.

 

  • Right to Waive.Any or all of the rights and limitations set forth in this Section 15 may be waived by the party against whom the claim is asserted.  Such waiver shall not waive or affect any other portion of this Section 15.

 

  • Survival of Agreement.This Section 15 will survive the termination of your relationship with us.

 

  • Small Claims Court.Notwithstanding the foregoing, either you or we may bring an individual action in small claims court.

 

  • Emergency Equitable Relief.Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration.  A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Section 15.

 

  • Claims Not Subject to Arbitration.Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of our patent, copyright, trademark or trade secrets rights shall not be subject to this Section 15.

 

  1. Miscellaneous.
    • You agree that we have the right to require an audit (electronic or otherwise) of the licensed Software and the installation of and access thereto. As part of any such audit, we or our authorized representative will have the right, on fifteen (15) days’ prior written notice, to inspect your records, systems and facilities, including machine IDs, serial numbers and related information, to verify that the use of any and all licensed Software is in conformance with this Agreement. You will provide full cooperation to enable any such audit. If we determine that your use is not in conformity with this Agreement, you will be in breach of this Agreement and at our sole option we may terminate the Agreement and/or require you to obtain immediately and pay for valid license(s) to bring your use into compliance with this agreement and other applicable terms. In addition to payment for a valid license and or termination of rights as a result of non-compliance with this Agreement, we reserve the right to seek any other remedies available at law or in equity, whether under this Agreement or otherwise. Under any circumstances where non-compliance is discovered during an audit, you shall pay the reasonable cost of the audit.
    • We will not be liable for any loss, damage or penalty resulting from delays or failures in performance resulting from acts of God, supplier delay or other causes beyond our reasonable control.
    • We reserve the right at any time to modify this Agreement and Software and to impose new or additional terms or conditions on your use of the Software. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Your continued use of the Software will be deemed acceptance thereof.
    • Should any term, condition, provision or part of this Agreement be found to be unlawful, invalid, illegal or unenforceable, that portion shall be deemed null and void and severed from the Agreement for all purposes, but such illegality, or invalidity or unenforceability shall not affect the legality, validity or enforceability of the remaining parts of this Agreement, and the remainder of the Agreement shall remain in full force and effect, unless such would be manifestly inequitable or would serve to deprive either party of a material part of what it bargained for in entering into this Agreement.
    • The Software and documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Software or documentation to, or make the Software or documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Software or documentation available outside the US.
    • The parties agree that this Agreement, together with the Terms of Use and Privacy Policy available on our website (with respect to any services we host or otherwise offer on our website), is the complete and exclusive statement of the agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral or written, between the parties relating to the subject matter.

Other than cancellation notices, which must be provided to support@msuite.com, all feedback, comments and other communications relating to this Agreement should be directed to: info@msuite.com.

 

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