MPS North America LLC (d/b/a “mag+”) has developed and/or acquired certain Software, SDK, and Trial SDK enabling the production and deployment, via Marketplaces, of publications, periodicals, and other documents as Apps, in a rich-media, digital format on Target Devices;
mag+ Customer (as defined in the mag+ Customer Order Confirmation- “Order”) desires to use the Software, Trial SDK, and/or SDK, as agreed in the Order and to receive, to the extent applicable, certain services from mag+, in connection with publishing Apps for deployment via Marketplace(s) on Target Devices. The general terms and conditions contained in this mag+ Customer End User License Agreement (“EULA”) and the Order regulate the relationship between the mag+ and mag+ Customer in connection with this Agreement.
Terms of usage in this Agreement may be defined in this EULA or in the Order.
This EULA is a legal document between mag+ and mag+ Customer for the Software Subscription and, if applicable, SDK (or, as applicable, Trial SDK) identified in the mag+ Customer Order Confirmation, including any applicable Professional Services, Support, Priority Support, Uptime, associated media, printed materials, electronic documents, and other Subscriptions.
mag+ reserves the right to, from time to time, impose changes to this EULA (including any documents referenced herein) to maintain compatibility with any terms imposed by relevant third parties (including, without limitation, Marketplace(s) and/or Target Device manufacturer(s)).
The Software Subscription(s), SDK, and/or Trial SDK (as applicable hereunder) is/are fee-based and subject to pricing terms listed and selected by mag+ Customer on the www.magplus.com website or the Order.
BRIEF SUMMARY OF EULA
The terms of the entire EULA are applicable and this is only a courtesy summary.
- You must agree to the terms of this EULA prior to engaging in any use of the Software, SDK or the Trial SDK;
- The Software, SDK (as applicable), and/or Trial SDK (as applicable) is/are licensed to you by mag+ and not sold. You are not licensed the right to use the mag+ trademarks or logos or to sublicense any rights to the Software, SDK or Trial SDK;
- This is a paid for Subscription to the Software, SDK, and/or Trial SDK (subject to the terms selected by mag+ Customer in the Order);
- mag+ Customer is prohibited from reverse engineering, reverse compiling, and/or modifying the Software, SDK, and/or Trial SDK, and/or making Derivative(s) of the Software, SDK, and/or Trial SDK;
- The permitted use of the Software is for the creation, deployment, and distribution of mag+ Customer Apps (in digital form), and content to such Apps, via Marketplace(s) on Target Devices in accordance with the Subscription licensed by mag+ Customer in connection with each such App;
- The permitted use of the SDK is for the development of App(s) reading MIB files or otherwise utilizing any component of the Software (including mag+ Publish or mag+ Plug-in) to be used in connection with the Software in furtherance of mag+ Customer’s publication of Apps according to the applicable Subscription set forth in the Order with respect to each such App.
- The permitted use of the Trial SDK is for the development of an App reading MIB files or otherwise utilizing any component of the Software (including mag+ Publish or mag+ Plug-in) to be used in connection with the Software in furtherance of, provided mag+ Customer enters into a subsequent SDK license, mag+ Customer’s publication of Apps according to the applicable Subscription set forth in the Order with respect to each such App. No commercial use of any results from mag+ Customer’s use of the Trial SDK, absent mag+ Customer’s entry into an SDK license, is permitted.
- The laws of (and arbitration in) the State of Delaware, USA govern this Agreement.
GENERAL TERMS AND CONDITIONS
“Agreement” means the combination of the mag+ Customer Order Confirmation and this EULA as well as mag+ electronic documents and/or links referring to this EULA (to the extent accessed by mag+ Customer) and or referred to from this EULA.
“App” means mag+ Customer’s digital app, which renders mag+ Customer’s content (MIB file), e.g. a digital magazine, a book, a brochure, an annual report, or other set of content directly owned by mag+ Customer for every country of circulation—created (in whole or in part) as a result of using the Software and/or SDK.
“Business Days” means normal working days (excluding weekends and holidays) in the State of New York, United States (i.e. Eastern Standard Time).
“Deliverable” means any deliverable(s), identified in any writing agreed to by the parties concerning Professional Services that mag+ provides to mag+ Customer. Deliverables are not covered under Support or Warranty unless the parties have reached a separate agreement regarding the same in writing.
“Delivery” means the date of dispatch of the relevant item(s) to mag+ Customer as regulated under the terms of Section 5.1 herein.
“Derivatives” means (a) for copyrighted or copyrightable material, any abridgment, revision, translation, enhancement, improvement, modification, expansion, compilation or other form in which an existing work may be recast, transformed or adapted, (b) for patented or patentable material, any improvement thereof, or (c) for trade secrets, any new material derived from such existing trade secret material, including new material which may be protected by copyright, patent or trade secret.
“Documentation” means any documentation in electronic or hard-copy form, any present and future manuals, instructions, user guides and any other materials related to Software, SDK, or Trial SDK provided by mag+ under the Agreement.
“Effective Date” is the date of the last signature on the Order or if the Order is placed electronically, the date of Order confirmation by mag+.
“Feedback” means any and all information (in oral, written, electronic or any other form) communicated voluntarily by mag+ Customer, directly or indirectly, to mag+, under this Agreement or otherwise pertaining to the mag+’s Confidential Information, including, without limitation, performance data, error data, reports, information, Support communications, comments, and suggestions.
“Help Desk” refers to assistance in using the Software (or, if applicable, SDK or Trial SDK) as opposed to error correction. Help desk is not included in Support and is subject to commercial pricing set forth in the Order and mag+’s terms and conditions for the provision of such service or, if not listed therein, as otherwise agreed between the parties hereto in writing.
“Hosting” means hosting and distribution of MIBs created by mag+ Customer pursuant to mag+ Customer’s use of, as applicable, the Software, SDK, and/or other software components as well as any associated image files used in the App that must be hosted outside the App. Such MIBs and associated image files are, if hosting is facilitated via mag+, hosted on (subject to change from time to time) servers operating on Heroku and Amazon AWS which comply with and are certified by, among others, SAS70 Type II or successor standards (for more detailed information at:https://www.heroku.com/policy/security). To clarify—while mag+ Customer can host MIBs itself, any associated image files used in the App must be hosted outside the App. As such, Hosting of image files is undertaken by mag+’s current hosting supplier(s).
“Independent Contractors” means any third party company used by mag+ or mag+ Customer in connection with this Agreement.
“IPR” means any and all now or hereafter known tangible and/or intangible: (a) right associated with works of authorship throughout the world, including but not limited to, copyrights, moral rights, and mask works; (b) trademarks and trade name rights and similar rights, throughout the world; (c) trade secret and know-how rights throughout the world; (d) patents, designs, algorithms, and other intellectual and/or industrial property rights including mag+ Designd Plugin, mag+ Production Tool, mag+ Reviewer App, and mag+ Publish Portal(of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license or otherwise; (e) all registrations, initial applications, renewals, extensions, continuations, divisions or re-issues thereof now or hereafter in force; and (f) Derivatives.
“Issue” means a MIB file published to its respective App. Each time any changes and/or corrections to the MIB file are published to the App, a new Issue of such App is created.
“Login” provided in the mag+ Designd plugin is used to carry out usage analytics of the plugin. There is no purchase required for using the Designd Plugin.mag+ Publish Portal Login requires purchase of License to access and use the set of features and other custom services in Publish portal
“mag+ Customer End User License Agreement” or “EULA” means these general terms and conditions for Software, SDK, and Trial SDK, including any appendices hereto.
“mag+ Customer Order Confirmation” or “Order” means the mag+ Customer order setting forth the details of the order as well as the payment terms for the Subscription, SDK, and/or Trial SDK, as well as, if applicable, Priority Support, Uptime, Professional Services, and any add-ons, which is either (i) signed by mag+ Customer, (ii) accepted by mag+ Customer via the magplus.com ordering interface, and/or appended to this Agreement according to the terms herein.
“Marketplace” means the specific digital distribution marketplace(s) via which mag+ Customer distributes its App(s). Such Marketplaces may include iTunes, GooglePlay, Amazon, and mag+ Customer’s internal distribution network (such as, Intranet).
“MIB” means the mag+ Issue Bundle file format providing the structure and allowing access to digital App content. The MIB is part of the Software and is generated by the mag+ Plug-in which itself constitutes part of the Software.
“Newsstand” as used in this Agreement and any associated documentation refers to the Apple Newsstand.
“Object Code” means the machine executable version of Software, SDK, and/or Trial SDK derived from source code of the Software, SDK, and/or Trial SDK respectively.
“Priority Support” means the enhanced support undertakings specified in SLA (Appendix D) to the extent mag+ Customer has selected and is current with its payments for the same.
“Professional Services” means any services provided by mag+ in connection with the Agreement, and in accordance with Appendix B, which are not expressly included within Support.
“Registered User” means each mag+ Customer employee or Independent Contractor legally permitted to use the Software, and/or SDK or Trial SDK according to the terms of this Agreement.
“SDK” means the mag+ Software development kit, which, if included in the Order, and subject to the pricing set forth therein, can be utilized by mag+ Customer according to the terms of this Agreement.
“SDK Support” means Support provided in connection with the SDK as set forth in Appendix “A” hereof.
“Service Level Agreement” or “SLA” means enhanced undertakings by mag+ in connection with Support and/or Uptime—as set forth in Appendix “D”. SLA consists of two components, Priority Support and Uptime, each of which applies only to the extent mag+ Customer has selected and paid for each such component of the SLA.
“Software” means the mag+ Software programs (including, without limitation, the mag+ Plugin, mag+ Publish, mag+ Reviewer App and MIB files), protected by copyright laws and international copyright treaties, provided by mag+ under this Agreement. Software includes the mag+ software programs (and any Updates and Upgrades thereof to the extent provided under this Agreement), in Object Code, as described in the Order.
“Specifications” means the specifications for Software (i.e. applicable to the Software Subscription(s) set forth in the Order and/or in this EULA) as well as, to the extent applicable to this Agreement, the SDK or Trial SDK, as set forth in the Agreement.
“Subscription” means each license or service subscription selected in the respective Order.
“Support” means those services provided by mag+ as set forth in Appendix A hereof.
“Target Device(s) means the range of mobile media devices referenced at https://support.magplus.com/entries/22274861, as updated from time to time by mag+.
“Trial SDK” means the mag+ Software development kit, which, if included in the Order, and subject to the pricing set forth therein or as subsequently charged by mag+, can be utilized by mag+ Customer solely for non-commercial purposes, according to the terms of this Agreement.
“Trial SDK Support” means those services, if available, provided by mag+ as set forth in Appendix A hereof.
“Updates” means any and all updates, fixes, patches, and modifications (excluding modifications performed by mag+ as Professional Services) of the Software and Documentation (to the extent constituting updates on the production environment (i.e. plugin and production tool), as the context may require. Updates are included to the extent specified with respect to the Subscription selected by mag+ Customer pursuant to the Order. To the extent this Agreement includes the Software, SDK or Trial SDK as well as SDK Support or Trial SDK Support, respectively, Updates to the SDK or Trial SDK (as applicable) shall be included.
“Upgrades” means any and all new releases of the Software, SDK or Trial SDK containing functional improvements. Upgrades can be provided to mag+ Customer upon general commercial release, subject to the applicable pricing for the same, depending upon the SDK or Trial SDK terms (if applicable) and the Subscription package selected by mag+ Customer pursuant to the Order. Upgrades, if furnished to mag+ Customer, are included within the definition of Software (or, as applicable, Trial SDK or SDK) for purposes of this Agreement. “Uptime” means the percentage of availability of the Software as set forth in the SLA (Appendix D).
“Universal” as used in this Agreement and any associated documentation refers to an that works for both iPhone and iPad.
2. SCOPE OF AGREEMENT AND AGREEMENT DOCUMENTS
2.1- The appendices and other documents and information listed below and incorporated herein by reference form an integral part of this Agreement and are incorporated herein by reference. In the event of any inconsistency between the appendices and the main body of this EULA, the main body shall prevail and the appendices shall thereafter prevail in accordance with their sequential order. In the event of any inconsistency between the Order and this EULA, the Order shall prevail if a clear statement is provided therein of the intention for the EULA to be superseded on the particular issue. In addition, should mag+ Customer be placing an order online at magplus.com, billing and payment timing as well as product specifications and limitations may be clarified on such website and any such clarifications which are inconsistent with the terms of this EULA shall prevail over this EULA- with regard to billing, invoicing, and product specifications / limitations. With the foregoing said, any such representations or statements made on the magplus.com website shall in no manner be construed to limit the terms and conditions of Section 8 of this EULA. mag+ Customers ordering online assume the responsibility of ensuring a full review of all applicable terms and conditions appearing online at the magplus.com website in connection with the purchase in question and, by accepting the terms of this EULA thereby accept the terms and conditions stated online at magplus.com in connection with any and all purchases.
Appendix A Support
Appendix B Professional Services
Appendix C Open Source/Third-Party Software Specification
Appendix D Service Level Agreement
3. LICENSE GRANT; OWNERSHIP
3.1 Subject to the terms and conditions of this Agreement and subject to any limitations set forth in the Order (in connection with the Subscription selected therein), mag+ grants mag+ Customer the non-exclusive, non-transferable, time-limited, fee-based rights and licenses (without the right to sublicense) to:
- a) Have each Registered User use the Software, Documentation, and Deliverables in connection with developing, deploying, and distributing, via Marketplaces, App(s) on or through Target Device(s).
- b) Make copies of Software, Deliverables, and Documentation as required to exercise the license grant in this Section 3.1 and for back-up purposes, provided any copyright notices and/or proprietary legends contained therein remain intact.
3.2 Subject to the terms and conditions of this Agreement, mag+ grants mag+ Customer, in connection with the SDK (if SDK is included under this Agreement), the non-exclusive, non-transferable, time-limited, fee-based rights and licenses (without the right to sublicense) to have each Registered User use the SDK in connection with developing an App that reads a MIB or otherwise utilizes any component of the Software (including mag+ Publish or mag+ Plug-in) to be used in connection with the Software in furtherance of mag+ Customer’s publication of Apps according to the applicable Subscription package set forth in the mag+ Customer Order Confirmation. mag+ Customer shall, however, at no time use the SDK or any results of its use of the SDK to compete with mag+ or to develop any results to be used in connection with any software other than the Software. The terms and conditions of the SDK shall apply equally to the Trial SDK to the extent not stated otherwise in this Agreement. The Trial SDK term shall be for thirty (30) calendar days and shall, at no time, permit commercial use of the results thereof unless and until mag+ Customer has licensed and paid for its license to the SDK.
3.3 Each party may use Independent Contractors to exercise its rights and/or fulfill its obligations under this Agreement. Any Independent Contractor’s breach of the terms of this Agreement shall be treated as if being a breach by the party that retained such Independent Contractor. All material concerning Software, SDK, Trial SDK, Deliverable(s), and Documentation shall be returned to mag+ Customer when the work has been completed by its Independent Contractor(s). Any Independent Contractor retained by the mag+ customer shall also be to the terms and conditions of this Agreement.
3.4 mag+ shall retain and acquire all rights, title, and interest, including, without limitation, IPR, recognized anywhere in the world, to the Software, SDK, Trial SDK, Feedback, Documentation, Deliverables, Support, SLA, add-ons, and any Derivatives of any of the foregoing. Deliverables are licensed to mag+ Customer on the same terms and conditions as the Software as set forth in this Section 3. mag+ Customer hereby assigns to mag+ (and warrants and represents mag+ Customer’s Independent Contractor(s) shall have assigned to mag+ Customer) all rights, title, and interests in and to the Software, SDK, Trial SDK, Feedback, Documentation, and Deliverables (including, without limitation, IPR) as necessary to give full legal effect to this Section 3.4. mag+ Customer agrees to take all actions required and/or otherwise reasonably requested by mag+ to secure and protect IPR assigned to mag+. For the avoidance of doubt, mag+ Customer reserves all rights in relation to mag+ Customer’s content supplied to mag+ for purpose of mag+ performing its obligations under this Agreement. All of mag+ Customer’s rights which are not specifically granted to mag+ (to the extent not containing mag+ IPR) are reserved to mag+ Customer.
3.5 mag+ Customer shall not copy or use the Software, SDK, or Trial SDK except as expressly permitted in this Agreement. mag+ Customer will not, with regard to the Software, SDK, and/or Trial SDK directly or indirectly, remove any mag+ trademarks, or copyright notices, patent any results achieved as a result of the use thereof, sublicense, lend, rent, sell, copy, modify, create Derivatives of, translate, recreate, or use the Software, SDK, and/or Trial SDK in conjunction with any other software, data or equipment in such a manner as would cause the resulting product to infringe upon any third party IPR, reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any portion of the Software, SDK or Trial SDK, or make the Software, SDK, and/or Trial SDK available to any third party unless explicitly permitted to do so under this Agreement by mag+. In no event shall mag+ Customer (directly or indirectly) use the Software, SDK, Trial SDK and/or Deliverable(s) for mag+ Customer’s development (directly or indirectly) of any product(s) and/or service(s) competing (directly or indirectly) with mag+. Upon any violation of the license grant or license restrictions set forth in this Agreement, mag+ shall have the right to seek any and all remedies available under the law and in equity.
3.6 By submitting, posting or displaying any content on or through the Software or any service related thereto, mag+ Customer grants mag+ a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, and distribute such content for the sole purpose of enabling mag+ to provide mag+ Customer with the mag+ services contemplated herein. To the extent not otherwise mag+ IPR, mag+ Customer shall own the digital content and results mag+ Customer creates pursuant to mag+ Customer’s lawful and authorized use of the Software, SDK, and the Trial SDK. mag+ reserves the right (but shall have no obligation) to remove any or all content from the mag+ Software and/or related services in the event such content, in mag+’s reasonable assessment, exposes mag+ to any potential third party or governmental claims, including, without limitation, IPR infringement claims (“Content Claims”). mag+ Customer agrees to immediately remove any content that (i) may give rise to Content Claims or (ii) mag+ has requested be removed. Further, mag+ Customer shall indemnify, defend, and hold mag+ harmless from and against any Content Claims or from any and all losses, costs, and/or damages resulting from any mag+ Customer breach of the terms of this Agreement.
3.7 By signing the Order, mag+ Customer confirms it has received and agreed to Appendices A, B, C, and D of this EULA (including any and all documents which such Appendices or this Agreement have incorporated herein by reference).
3.8 U.S. Government Restricted Rights: All mag+ products and documentation are commercial in nature. The Software, SDK, Trial SDK, Deliverables, and Documentation are “Commercial Items”, as that term is defined in 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are defined in 48 C.F.R. §252.227-7014(a)(5) and 48 C.F.R. §252.227-7014(a)(1), and used in 48 C.F.R. §12.212 and 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. §12.212, 48 C.F.R. §252.227-7015, 48 C.F.R. §227.7202 through 227.7202-4, 48 C.F.R. §52.227-14, and other relevant sections of the Code of Federal Regulations, as applicable, mag+’s computer software and computer software documentation are licensed to United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in this EULA.
3.9 In the event the Uniform Computer Information Transactions Act, any version thereof, a similar law or any other statutes implied for Internet transactions (collectively “UCITA”) is enacted as part of the law of any applicable state of the United States or any applicable country or any applicable region within any country, such statute shall not govern any aspect of this EULA, any license granted hereunder, nor any of the parties’ rights and/or obligations arising pursuant to this EULA. This EULA and the parties’ rights and obligations arising hereunder shall be governed according to the Governing Law provisions in Section 12.1 of this EULA.
3.10 mag+ reserves the right to audit any Apps in order to ascertain whether any versions of the Software or SDK to which mag+ Customer has not been granted lawful access by mag+ have been used by mag+ Customer in contravention of the terms of this Agreement. mag+ Customer understands and agrees any such usage beyond the permitted scope of license constitutes infringement of mag+’s IPR and a material breach of this Agreement.
4. DUTIES OF MAG+ CUSTOMER
4.1 mag+ Customer shall remit payment in accordance with the terms of the Order or as otherwise agreed to in writing by and between the parties. Any breach of this Section 4.1 shall be a material breach of this Agreement. mag+ Customer shall indemnify mag+ for all collection costs (including, without limitation, legal fees, interest, penalties) incurred in connection with collecting any and all overdue mag+ Customer payments.
5. DELIVERY AND HOSTING
5.1 Within three (3) Business Days of mag+ Customer having submitted the applicable payment for the Software, SDK, Trial SDK, and/or Upgrade, all necessary information necessary for mag+ Customer to access the Software, SDK, Trial SDK or Upgrade in question shall be dispatched, via email, to mag+ Customer.
5.2 The life span of App(s) will be until this Agreement, with respect to the App in question, has been terminated, meaning that after the end of the termination period of Subscription for the respective App, mag+ Publish will no longer be accessible for the App(s) or the brand administrator. Also, mag+ shall have the right to suspend access in the event mag+ Customer has failed to pay any and all applicable fees.
All remuneration shall be subject to annual increase in accordance with the U.S. Consumer Price Index for all Items, U.S. City Average, All Urban Consumers, published by the Bureau of Labor Statistics of the U.S. Department of Labor.
6.1 All fees shall be paid in USD to MPS North America LLC exclusive of any expenses, costs, taxes, duties, and/or customs of any kind (as any and all such assessments shall be in addition to such fees). To the extent mag+ Customer makes any purchase using a credit card, paypal or any other online payment solution, mag+ may securely share mag+ Customer’s credit card information with third parties as necessary for standard payment processing. Further, to the extent any recurring or further fees (including, but not limited to, Hosting) shall be subsequently applied in connection with any purchase, such subsequent payments shall be applied to the same payment method (e.g. credit card, paypal, etc.) that was used for the immediately preceding applied charges—unless mag+ Customer has informed the mag+ billing department otherwise, in writing.
6.2 Should mag+ Customer be legally required to withhold income-related taxes based on mag+ Customer’s payments to mag+, mag+ Customer shall timely remit any such withheld amounts to the appropriate tax authority and shall promptly provide mag+ with any and all assistance necessary for mag+ to obtain any tax credit available to mag+. mag+ Customer shall indemnify mag+ for any and all costs (including, without limitation, legal, accountancy fees, and any penalties) incurred in connection with mag+ Customer’s breach of the terms of this Section.
6.3 Any delinquent payments shall accrue penalty interest at the rate of two percent (2%) per commenced month of delay. Further, mag+ Customer shall indemnify mag+ for all costs (including, without limitation, attorneys’ fees and collections costs) incurred in connection with recovering any and all amounts due and owing, pursuant to the terms of this Agreement, from mag+ Customer to mag+.
6.4 The applicable fee(s) are set forth in the Order in relation to the Software Subscription, SDK, and/or Trial SDK selected by mag+ Customer as well as any Professional Services, Priority Support, Uptime or add-ons in connection therewith. To the extent any additional Issue(s), App(s), Professional Services, Priority Support, Uptime or add-ons are incorporated by mag+ Customer into this Agreement after the Effective Date, the terms of the Order shall apply subject to annual pricing increases by mag+ and only as otherwise agreed in writing by the parties to this Agreement.
6.5-In order to initiate the operations of the mag+ Designd Plugin and to access and use the features given in the Plugin menu mag+ Customers can use the same account which was used while downloading the tool.
6.6 The license fee Invoice is generated upon the Effective Date of the Order and at the intervals corresponding to the Subscription, SDK, Trial SDK or add-on selected by mag+ Customer in the Order. Thereafter, mag+ Customer obtains a login to its mag+ Publish portal. The invoice must be paid within thirty (30) calendar days of the date of invoice unless otherwise stated in the Order (or Order related materials).
6.7 Support, to the extent applicable, shall commence upon the Effective Date of the Order and shall terminate upon, as applicable, the expiration or termination of the Subscription, SDK, and/or Trial SDK term to which such Support relates. mag+ shall continue to make Support available on the previous release of the Software, SDK, and Trial SDK during the term of the Agreement with mag+ Customer as pertains to the Software, SDK and/or Trial SDK in question. For older releases, mag+’s then applicable Professional Service rates shall apply unless otherwise agreed in writing.
6.8 Help Desk is optional and, therefore, commences when mag+ Customer chooses to sign up whether in connection with the Software, SDK, and/or the Trial SDK. Pricing is as specified in the Order (or as otherwise applicable at the time of the Order) with regard to the Subscription selected as well as, to the extent applicable, the Trial SDK or the SDK. Help Desk will be invoiced upon mag+ Customer’s election of one of the Help Desk options and shall be paid, unless stated otherwise in the Order, within thirty (30) calendar days from the date of invoice. Help Desk is available only directly to mag+ Customer and to a maximum of two (2) contact persons from mag+ Customer.
6.9 Professional Service rates, subject to annual increase, are as set forth in the Order and shall be invoiced upon the date agreed to, in writing, by and between the Parties hereto. If nothing is stated otherwise in the Order or otherwise in writing signed by mag+, the invoice shall be issued monthly in arrears and shall be paid within thirty (30) calendar days from the date of invoice.
6.11 To the extent mag+ Customer desires to incorporate additional Issues, Apps, Hosting, Professional Services, Priority Support, Uptime, and/or any add-on services of any kind into the Agreement after the Effective Date, mag+ Customer shall submit such orders to mag+ in writing (e-mail being sufficient if directed to mag+ Support, a mag+ sales representative or, if available, via the on-line mag+ Customer ordering interface or button provided by mag+, in connection with placing such Orders). The effective date of each such order shall be the date when the order has been confirmed by mag+ provided such order conforms to any order requirements specified by mag+. Unless stated otherwise by mag+ in writing, the terms of the existing Agreement shall apply to the respective subsequent order(s).
7. SUPPORT; PROFESSIONAL SERVICES
7.1 mag+ shall provide Support services regarding Software (excluding Deliverables) and, to the extent specified in the Order, SDK (excluding Deliverables), and/or Trial SDK (excluding Deliverables) in accordance with the terms of Appendix “A” (Support). Further, if agreed in writing, mag+ shall provide Professional Services in accordance with Appendix B (Professional Services). Priority Support, as set forth in Appendix D, shall only apply to the extent separately purchased by mag+ Customer.
7.2 mag+ Customer must provide thirty (30) calendar days’ written notice of termination of any Professional Service work previously ordered, and mag+ shall be permitted to invoice for all work (including the work of its Independent Contractors) performed up to the effective date of termination. To clarify, mag+ shall be entitled to remuneration (for itself and its Independent Contractors) at the rate that would have otherwise been billed during the thirty (30) days’ notice period .
8. LIMITATION OF LIABILITY; WARRANTY DISCLAIMER
8.1 mag+ warrants that, to the best of its knowledge, the Software and, to the extent included in this Agreement, the SDK and/or Trial SDK, solely in their unmodified form, do not infringe any third party’s copyright(s), trade secret(s), or patent(s) granted as of the Effective Date.
8.2 mag+ warrants the Software and, to the extent included in this Agreement, the SDK and/or Trial SDK, shall materially comply with the Specifications (as applicable to the Subscription selected by mag+ Customer and as applicable to the SDK and/or Trial SDK in the Order), for the term of validity of the respective license under this Agreement. In the event of any material non-conformity with the Specifications of the Software, SDK or Trial SDK as applicable to the Subscription, or license in question, mag+ shall, at its discretion, repair or replace such defective Software, SDK or Trial SDK. This warranty expressly excludes any errors arising from improper use, viruses, external factors, and mag+ Customer’s failure to install prior Updates, in the event the Software, SDK, or Trial SDK has been modified or altered in any manner or if the error arises as a result of the combination of the Software, SDK and/or Trial SDK with any other software or hardware, and in connection with any device which itself embodies technical limitations or deviations from the Target Devices. Any Apps derived from the Software, SDK, Trial SDK, and/or Deliverables may contain bugs and/or may not be approved by third parties (e.g. without limitation, Marketplace(s)) for distribution. mag+ Customer shall, itself, be fully responsible for final testing of any such Apps and clearing the same for commercial release in connection with the respective Marketplace and Target Device(s). mag+ shall bear no liability of any kind in connection with any decisions made by any third party (e.g., Marketplace(s)) or for any changes made by any such third party in connection with a Target Device or the technical specifications thereof. Any and all Hosting services facilitated by mag+ shall be handled by mag+’s current Hosting vendor and shall be subject to such vendor’s terms and conditions. mag+ makes no warranties or representations as to such Hosting vendor’s service.
8.3 IN NO EVENT, EXCEPTING ANY ACTION BASED UPON WILLFUL MISCONDUCT, EXPLICITLY UNDERTAKEN INDEMNIFICATION OBLIGATIONS, MAG+ CUSTOMER FAILURE TO TIMELY PAY, ONE PARTY’S INFRINGEMENT OF THE OTHER PARTY’S IPR OR BREACH OF CONFIDENTIALITY (SECTION 9 BELOW), SHALL EITHER PARTY HERETO BE ENTITLED TO, REGARDLESS OF WHETHER A CLAIM OR ACTION IS BASED UPON STRICT LIABILITY; NEGLIGENCE; INDEMNIFICATION; BREACH OF CONTRACT, WARRANTY, SUPPORT, PRIORITY SUPPORT, PROFESSIONAL SERVICES, UPTIME, SUBSCRIPTION UPDATES OF ANY KIND, PROFESSIONAL SERVICES OR ANY OTHER THEORY OF LIABILITY IN CONNECTION WITH THIS AGREEMENT (INCLUDING THE APPENDICES), ANY PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR LOST DATA, WHETHER OR NOT THE PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
8.4 IN NO EVENT, EXCEPTING ANY ACTION BASED UPON WILLFUL MISCONDUCT, EXPLICITLY UNDERTAKEN INDEMNIFICATION OBLIGATIONS, MAG+ CUSTOMER FAILURE TO TIMELY PAY ONE PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY OR BREACH OF CONFIDENTIALITY (SECTION 9 BELOW), SHALL EITHER PARTY HERETO BE ENTITLED TO, REGARDLESS OF WHETHER A CLAIM OR ACTION IS BASED UPON STRICT LIABILITY; NEGLIGENCE; INDEMNIFICATION; BREACH OF CONTRACT, WARRANTY, SUPPORT, PRIORITY SUPPORT, PROFESSIONAL SERVICES, UPTIME, SUBSCRIPTION UPDATES OF ANY KIND, OR ANY OTHER THEORY OF LIABILITY IN CONNECTION WITH THIS AGREEMENT (INCLUDING THE APPENDICES) AN AGGREGATE AMOUNT OF DAMAGES EXCEEDING THE LESSER OF USD TEN THOUSAND (10,000) OR THE AMOUNT ACTUALLY PAID BY MAG+ CUSTOMER DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE CLAIM IN QUESTION. ANY PAYMENTS DUE AND OWING BY MAG+ CUSTOMER TO MAG+ (INCLUDING ANY ATTORNEYS’ FEES AND/OR COLLECTION COSTS RELATED THERETO) SHALL NOT BE DEEMED “DAMAGES” UNDER THIS SECTION.
8.5 UNLESS STATED EXPRESSLY OTHERWISE IN THIS SECTION 8, THE SOFTWARE, SDK, TRIAL SDK, DOCUMENTATION, SUPPORT, PRIORITY SUPPORT, UPTIME, SUBSCRIPTIONS, UPDATES AND UPGRADES OF ANY KIND, AND DELIVERABLES ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. MAG+ AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
8.6 THE LIMITATIONS OF LIABILITY AND WARRANTY DISCLAIMERS IN THIS SECTION 8 ARE MATERIAL, BARGAINED FOR BASES OF THE AGREEMENT, AND HAVE BEEN RELIED UPON IN DETERMINING THE CONSIDERATION TO BE PAID UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
8.7 Should mag+ Customer desire to obtain a higher level of liability coverage, license usage, extended warranty, support, and/or service level, mag+ Customer shall contact mag+ with a specific request in writing, and mag+ shall reply with a quote for such additional mag+ undertakings.
8.8 mag+ Customer understands and agrees mag+ has no responsibility or liability for the deletion or failure to store any content and/or for other communications maintained or transmitted through the Software or any services related thereto. mag+ Customer further acknowledges mag+ Customer is solely responsible for properly configuring all services contemplated herein, for taking steps to maintain appropriate security, and for backing up content and Apps.
9.1 mag+ Customer shall maintain confidentiality and may not, without the mag+’s prior, written consent, unless expressly stated otherwise in this Agreement, disclose to any third party any documentation and any information designated by mag+ as confidential (which, to clarify, includes, Software, SDK, Trial SDK, Updates, Upgrades, Feedback, Deliverables, and Documentation), whether of a commercial or a technical nature, i.e. mag+ Customer’s shall use the information only for the purpose of this Agreement. For the purposes of this clause, “Confidential Information” means non-public information disclosed by mag+ to mag+_ Customer’s relating to mag+ business, products; affairs; finances; clients; customers; trade secrets; customer lists; billing practices; contractual arrangements; technical data and know-how.
9.2 Neither party shall be liable for disclosing any such information if it was, in all material respects: (a) public knowledge at the time of disclosure or thereafter becomes public knowledge other than through an act or omission of the receiving party; (b) already lawfully known to the other party prior to its receipt from the disclosing party; (c) demonstrably developed at any time by the receiving party without any access to the information received hereunder; (d) lawfully obtained by a third party, free of any confidentiality obligations, from other unrestricted sources; or (e) disclosed with the prior written permission of the disclosing party.
9.3 mag+ shall, immediately after the Effective Date, have the right to release a public statement disclosing the existence of this Agreement, and to use any and all mag+ Customer trademarks and logos in connection therewith. Further, mag+ shall be permitted to display the covers of mag+ Customer’s Apps on any of mag+’s websites as well as in any and all other media in connection with the promotion of the Software. mag+ Customer hereby grants mag+ all necessary IPR rights necessary to give full effect to this Section 9.3.
9.4 The parties agree any breach of the confidentiality obligations of this Section 9 or use of the Software, SDK, Trial SDK, Documentation and/or Deliverables beyond the express scope of the license grant set forth in Section 3 hereof, may result in irreparable harm to mag+ for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available, mag+ shall be entitled to seek injunctive relief, whether interim or final, anywhere in the world as reasonably necessary to safeguard mag+’s interests.
9.5 The obligations set forth in this Section 9 shall survive any expiration or termination of this Agreement for a period of five (5) years. Notwithstanding the foregoing, the confidentiality obligations concerning the Software, Trial SDK, SDK, Documentation, Deliverables, and Feedback shall survive any expiration or termination of this Agreement until such time as one of the exclusions set forth in Section 9.2 applies thereto in all material respects.
9.6 mag+ Customer has no obligation to give mag+ any Feedback. mag+ may use and include any Feedback to improve the Software, SDK, Trial SDK, and/or other mag+ technologies. Accordingly, if mag+ Customer provides Feedback, mag+ Customer agrees mag+ and its mag+ Customers may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in the Software, SDK, Trial SDK or other technologies without having to obtain any approval from and without having to make any accounting or payment to mag+ Customer.
10.1 mag+ shall defend, indemnify, and hold harmless mag+ Customer from and against any and all damages, costs and expenses incurred as a result of mag+’s breach of its warranty under Section 8.1 hereof; provided mag+ has been notified without undue delay (not to exceed ten (10) Business Days) in writing of such claim (to the extent mag+ Customer knows of such claim or should reasonably have been aware of such claim) and given authority, information, and assistance to settle the claim or control the defense of any suit or proceeding. This indemnification obligation expressly excludes any claims arising from mag+ Customer’s improper use of the, as applicable, Software, SDK, and/or Trial SDK; external factors; mag+ Customer’s failure to install prior Updates; in the event the Software, SDK, and/or Trial SDK has been modified or altered in any manner; or if the claim results from the combination of the Software, SDK and/or Trial SDK with any other software or hardware. Further, mag+ shall have no obligation to indemnify mag+ Customer if mag+ Customer had not, at the time the claim against mag+ Customer arose, been current in paying any and all fees, to mag+, under this Agreement.
10.2 mag+ Customer shall defend, indemnify, and hold harmless mag+ from and against any and all damages, costs, and expenses incurred as a result of mag+ Customer’s breach of its warranty under Section 3.6 and/or in connection with any attorney’s fees or collection costs incurred by mag+ in connection with recovering payments from mag+ Customer.
11. TERM AND TERMINATION
11.1 This Agreement shall commence on the Effective Date and run for one (1) year from the date thereof. The Agreement shall automatically renew for periods of one (1) year at a time unless either party submits termination notice to the other, in writing, within thirty (30) calendar days prior to the conclusion of the initial term or any annual extension thereafter—subject to any lengthier termination requirements of any existing Subscriptions or ongoing services or support (as additional Subscriptions, ongoing services or support, may be purchased after the Effective Date of the Agreement). To clarify, Subscriptions and any add-on services or support (unless clearly identified, in writing, as having only one-time fees) run for an initial period of one (1) year and automatically renew for periods of one (1) year at a time unless either party submits termination notice to the other, in writing, within thirty (30) calendar days prior to the conclusion of the initial term of the Subscription (or ongoing service or support) or any annual extension thereafter. If any existing terms for Subscription, add-on support or add-on services exceed the Agreement term, the Agreement shall be extended until the conclusion of the Subscription, add-on service, and add-on support terms (as applicable). In the event of a material breach of this Agreement by either party (including, without limitation, delinquency in payment) not remedied within thirty (30) calendar days from the other party’s written notice thereof or in case either party should become bankrupt or insolvent, the other party shall have the right to terminate this Agreement with immediate effect.
11.2 After termination of the Agreement by either party pursuant to Section 11.1 above, all mag+ Customer’s rights in respect of Software, SDK, Trial SDK, Deliverables, Feedback, and Documentation shall cease and mag+ Customer shall promptly, completely, and irrevocably purge and otherwise destroy any and all copies of the same. All Apps released via Marketplace(s) shall remain in full force and effect and continue to be available to mag+ Customer’s customers for purchase during the termination notice period. To clarify, however, should mag+ Customer have licensed the Trial SDK but opt not to license the SDK during or before the termination of the Trial SDK term, all mag+ Customer’s rights in respect of the Trial SDK shall immediately cease and any and all results of the use of the Trial SDK as well as the Trial SDK itself shall be purged and/or otherwise destroyed. To further clarify, should mag+ Customer desire to cancel the SDK license but nevertheless retain its license to one or more Software Subscriptions set forth in the Order, mag+ Customer shall maintain a license to the SDK version existing at the time of such SDK cancellation free-of-charge; provided such SDK use shall be strictly limited to the terms of this Agreement, shall exclude any and all rights to Updates and/or Upgrades of any kind to the SDK, and shall automatically terminate when mag+ Customer ceases from having a current paid for Software Subscription.
11.3 The foregoing rights of termination are in addition to all other rights and remedies provided in this Agreement or at law, subject to the express limitations set forth in Section 8 (Limitation of Liability; Warranty Disclaimer).
11.4 Provisions contained in this Agreement that are clearly expressed or by their sense and context are intended to survive the expiration or termination of this Agreement, shall so survive the expiration or termination hereof.
12. GENERAL PROVISIONS
12.1 Governing Law. This Agreement shall be governed by the substantive laws of the New York, giving no effect to any conflict of law’s provisions. Any dispute shall be finally settled by arbitration in New York, United States in accordance with the rules of the American Arbitration Association. The United Nations Convention on the International Sale of Goods is expressly excluded from this Agreement.
12.2 Assignment. Neither party may assign this Agreement in whole or part to anyone without the other party’s prior, written consent. Any attempt to assign, transfer, or subcontract any of the rights, duties, or obligations of this Agreement without such required consent is void unless stated otherwise in this Agreement. Notwithstanding the foregoing, mag+ shall be entitled to assign this Agreement to any company (i) owned or controlled, directly or indirectly, by mag+ or (ii) which owns or controls, directly or indirectly, mag+ or (iii) which, is, directly or indirectly, under common ownership with mag+ (iv) in the event of any change of control of mag+.
12.3 Amendment, Waiver, Entire Agreement. No amendment to this Agreement or waiver shall be valid unless based on a written and signed undertaking. The waiver by either party of any term or condition of this Agreement shall not be deemed to constitute a continuing waiver. This Agreement contains the entire agreement between the parties on the subject matter of this Agreement, and supersedes all memoranda, representations, undertakings, and agreements, whether oral or written, previously made between the parties with respect to the subject matter of this Agreement. In the event any provision of this Agreement is deemed by a court or tribunal of competent jurisdiction to be unenforceable, such provision(s) shall be limited or eliminated to the extent necessary so this Agreement shall otherwise stay in full force and effect.
12.4 Notices. All notices, demands, or consents required or permitted under this Agreement shall be in writing and shall be delivered personally, sent by electronic mail confirmed by registered airmail letter, or sent by certified or registered mail to the appropriate Party at the address set forth in the first paragraph in this Agreement or at such other address as shall be given to by either Party to the other in writing. Such notice shall be deemed to be given: (i) if sent by registered airmail letter–five (5) days after the day of dispatch, (ii) if sent byelectronic mail– on the day of dispatch of the letter of confirmation, (iii) if sent by personal delivery–on the day of delivery.
12.5 Relationship between the parties. No relationship of principal to agent, master to servant, employer to employee, franchiser to franchisee, partnership, or joint venture is established between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf.
12.6 Export. In addition to the terms of this Agreement, mag+ Customer may not use or otherwise export or re-export the Software in any manner violative of the laws of the United States, the laws of the jurisdiction in which the Software was obtained, as well as the laws of any other country which are applicable to this Agreement.
APPENDIX A –SUPPORT AGREEMENT
mag+ shall put forth reasonable commercial efforts to provide, under this Agreement, the following Support, via email, to mag+ Customer, as further detailed below and in accordance with the Subscription selected by mag+ Customer in the Order. To clarify should such Subscription not explicitly include Support, then Support shall be excluded.
- Error correction
- Updates of Software
Help desk is not covered under Support in that it pertains to putting forth reasonable efforts to assist mag+ Customer in using the Software and/or SDK and does not relate to error correction.
Support shall be available on Business Days between 0800 (8:00 AM) and 1700 (5:00 PM), Eastern Standard Time (“EST”).
Support is limited to designated support contact persons at mag+ Customer (as listed in the Order) for issues not capable of resolution within mag+ Customer or otherwise pursuant to the information contained in the Documentation or as a result of mag+ Customer’s representative(s) training from mag+. To clarify, mag+ Customer must put forth reasonable efforts to resolve such issue(s) prior to referring the issues to mag+. mag+ Customer shall ensure all mag+ Customer support personnel (including Independent Contractors) contacting mag+ have completed all required training and possess the requisite skill necessary to effectively understand and implement mag+’s Support assistance. In addition, mag+ Customer agrees that the number of contact points shall at no time exceed an aggregate number of two (2) such named persons for support. Notwithstanding the foregoing, it is understood that Priority Support, pursuant to Appendix D (if applicable) permits three (3) contact email addresses. It is understood that any and all contact persons and email account information shall be provided by mag+ Customer in the Order or as otherwise instructed in writing by mag+.
Support shall only apply to the current and previous two (2) Update releases of Software. Any services provided by mag+ in connection with any older release shall be deemed Professional Services subject to the terms of this Agreement as well as mag+’s applicable Professional Service rates.
It is understood mag+ puts forth concerted efforts to ensure the accuracy of any support-related information made available on-line or in written documentation, including, without limitation, any help forum or frequently ask questions content. With this said, however, mag+ Customer understands and agrees such information may contain errors and is provided on an “as is” basis, expressly excluding any and all express or implied warranties and/or representations of any kind such as, without limitation, the implied warranties of merchantability or fitness for a particular purpose. It is understood and agreed any mag+ reference to “response” time in this Agreement refers to mag+ initiating the investigatory process with regard to a TR (defined below).
VERIFICATION, CLASSIFICATION AND CORRECTIONS OF ERRORS
TROUBLE REPORTS (“TR”)
mag+ Customer shall report mag+ for all errors for which mag+ Customer requires replacement or correction by using TR: as set out below. All TRs shall be sent to mag+’s designated contact point by electronic mail. During the TR analysis, mag+ Customer undertakes to provide mag+ with reasonable assistance in reproducing the error and all necessary equipment and other resources required.
Each TR shall contain the following information:
(a) mag+ Customer company name, submitter name and e-mail address,
(b) mag+ Customer internal trouble report identification number,
(c) Probable bug,
(d) Name and version of Software and host environment,
(e) Description and logging of the error and its impact on the Software performance (including error log files reasonably establishing that the error originates from the Software and has not been caused by improper use, viruses, external factors, mag+ Customer’s failure to install prior Updates or other software integrated with the Software), and
(f) Description of how to verify/reproduce the problem, including commands and procedures.
For each TR, mag+ undertakes to:
(a) Confirm its receipt of the TR by electronic mail,
(b) Analyze the TR, verify the existence of the errors, and
(c) Propose a solution.
Support solely covers the generic, unmodified version of Software and/or, to the extent applicable, the SDK and Trial SDK, and errors originating therein. Consequently, support of any Deliverables or anything other provided by mag+ under this Agreement (but not explicitly included in Support) shall not be covered under this Agreement but can be offered, subject to mag+ availability, on a time and material basis corresponding to the Professional Service rates set forth in the mag+ Customer Order Confirmation. Moreover, should mag+ spend time in resolving a mag+ Customer TR and later determine the purported error did not originate from the Software itself, mag+ shall have the right to (at its discretion) invoice such time to mag+ Customer according to the terms of this Agreement as well as mag+’s current Professional Service rates.
PROVISION OF UPDATES
mag+ shall, when an Update has been released, upon mag+ Customer’s request (to the extent mag+ Customer has the right to Updates in accordance with the Software Subscription selected without delay provide mag+ Customer with such Update at no extra cost for mag+ Customer as long as this Appendix A is in effect.
The foregoing does not include App repackaging and re-submitting the result to Marketplace(s) or any other marketplace. Such updates can, subject to mag+ availability, be performed at a fixed Professional Services charge in accordance with mag+’s current pricing for the same.
Support shall apply to SDK and Trial SDK on the same terms and conditions of this Appendix “A”.
APPENDIX B – OPEN SOURCE NOTICE / THIRD PARTY SOFTWARE SPECIFICATION
External source code libraries used by mag+ in connection with the Software.
The purpose of this Appendix C is to provide mag+ Customers with an identification of open source code and/or third party software accompanying the Software and, as applicable, SDK or Trial SDK, as well as the license terms regulating the same. Further, should mag+ Customer desire to license any third party Service, the terms for the same are set forth in Section 1 below.
mag+ has reviewed such license agreements and determined that mag+ is permitted to have used such open source code (to the extent such code has been used) and to sublicense the same to your company (to the extent such code is sublicensed to your company). With this said, it is mag+ Customer’s obligation to review and accept the terms of such open source and/or third party software license terms. mag+, in furnishing your company with this information, aims to comply with mag+’s notification obligations under such open source licenses.
To access the updated list of Open Source Notice / Third Party Software Specification, visit – subject to change by mag+ from time to time.
Find below the third party Service Terms and Conditions, should mag+ Customer have purchased such service. Any agreement between any third party and mag+ Customer is solely between such parties. mag+ is an authorized reseller of such third party Service.
- GRANT AND USE TERMS FOR THE THIRD PARTY SERVICE (TO THE EXTENT APPLICABLE)
mag+ is an authorized reseller of the third party Services. Should mag+ Customer elect to purchase any third party Services, these Terms and relevant commercial terms set forth in the Order shall apply. mag+ Customer understands and agrees that the third party Services are an agreement entered into by and between mag+ Customer and third party. mag+ makes no warranties or representations of any kind in connection with the third party or the third party Services. By signing this Agreement, mag+ signs on behalf of third party and does not assume any legal obligations of any kind in connection with such third party or the third party Services. mag+ shall invoice mag+ Customer for the third party Services, collect such fees from mag+ Customer, and remit amounts to such third party as agreed between third party and mag+. Any claims by mag+ Customer against AML shall have no bearing on the Agreement between mag+ Customer and mag+.
mag+ Customer shall pay for the Service in accordance with these third party Terms (and as set forth in the Order).
The Service is subject to usage-based billing based on the commercial terms set out in the Order.
Such third party hereby grants mag+ Customer a non-exclusive, non-transferable, worldwide right to authorize individuals to use third party Services, subject to the terms and conditions of this Agreement. All rights not expressly granted to mag+ Customer are reserved by third party and its licensors. The third party Services includes all upgrades and updates during the term which that third party makes generally available at no additional cost to its customers, but does not include those upgrades containing new or different functionality for which such third party charges its customers separately.
- USER’S RESTRICTIONS AND OBLIGATIONS
mag+ Customer shall not, and shall not allow any third parties to: (i) license, sublicense, lease, rent, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any other third party the third party’s Services made available to mag+ Customer in the course of using the third party Services in any way as per the terms of this agreement; (ii) modify or make derivative works based upon the third party Service; (iii) use the third party Service as a service bureau or to provide a service directly or indirectly to third parties or for the processing of data provided by a third party; (iv) reverse engineer, adapt, translate, decompile, or otherwise derive the source code or access the Subs-Plus Service in order to copy or imitate any ideas or features, or build a product or service similar to the Service, or use similar features, software, functions or graphics as those of the third party’s Service, whether or not intended to compete with the third party’s Service; or (v) access the third party Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; or (vi) use the third party Service for any other purpose other than which it is intended to be used for. mag+ Customer shall not: (i) interfere with, intentionally overload or disrupt the integrity or performance of the third party Service; (ii) attempt to gain unauthorized access to the third party Service or its related systems or networks; (iii) transmit or store infringing, obscene, threatening, libelous, or otherwise unlawful or offensive data or material, or data that violates the privacy rights of any person; or (iv) transmit or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. mag+ Customer is responsible for all activity occurring under mag+ Customer’s account, and shall abide by all applicable local, state, national and international laws, treaties and regulations in connection with use of the third party Service, including those related to taxes, data privacy, and the transmission of technical or personal data. mag+ Customer shall: (i) protect the secrecy of mag+ Customer’s user id’s and passwords; (ii) notify such third party immediately of any unauthorized use of any user id’s or password or any other know nor suspected breach of security; (iii) report to such third party immediately and use reasonable efforts to stop any copying or distribution of content not authorized by third party that is known or suspected by mag+ Customer; and (iv) not impersonate another third party customer or user or provide false identity information to gain access to or use the Third party Service. To clarify, mag+ Customer shall be permitted to have its independent contractor(s) utilize the Third party Service within the scope of mag+ Customer’s permitted usage of the same. mag+ Customer shall be liable for any breach of the terms of this Agreement by any mag+ Customer independent contractor.
- ACCOUNT INFORMATION AND DATA
Such third party does not own or accept responsibility for any data, information or material that mag+ Customer processes or submits to the Third party Service in the course of using the Third party Service (“Customer Data”). mag+ Customer retains ownership of all Customer Data. mag+ Customer, not such third party, shall have sole responsibility for the accuracy, quality, security, integrity, legality, reliability, appropriateness, and intellectual property rights in all Customer Data, and such third party shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. mag+ Customer agrees to ensure Customer Data is separately backed up. Each party shall comply with its respective obligations under the provisions of the Data Protection Act 1998.
Where such third party as part of the Third party Service processes personal data as a data processor on behalf of the Nag+ Customer, such third party shall act only on instructions from mag+ Customer as data controller; and at all times take all appropriate technical and organizational measures against unauthorized or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
- INTELLECTUAL PROPERTY OWNERSHIP
Such third party (and its licensors, where applicable) shall own all right, title and interest, including all related inventions whether patented or not, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and trade secrets, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world (collectively, “Intellectual Property Rights”), in and to the Third party Service, any third party content, and in any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by mag+ Customer or any other party relating to the Third party Service. “Technology” means all of third party’s proprietary technology (including but not limited to, any other software, products, processes, algorithms, user interfaces, know-how, techniques, designs, mappings, routings, templates and other tangible or intangible technical material or information), and all related Intellectual Property Rights, made available to mag+ Customer directly or indirectly by third party in providing the Third party Service. This Agreement does not convey to mag+ Customer any rights of ownership in or related to the Third party Service. The third party name, the third party logo, and the product names associated with the Third party Service are trademarks of third party or third parties, and no right or license is granted to mag+ Customer to use or remove them.
- THIRD PARTY DEALINGS
- TERM AND TERMINATION; SUSPENSION
The Term of this Agreement begins on the Effective Date of the Order (or upon the date of any order placed subsequent to the Order) and shall run for an initial period of one (1) year thereafter. The term shall automatically renew for periods of one (1) year at a time unless terminated by mag+ Customer or third party (whether directly or via mag+) by giving at least thirty (30) calendar days’ termination notice prior to the conclusion of the initial term or any annual extension thereafter.
Either party may terminate this Agreement upon written notice, if the other party: (a) breaches any of its material obligations hereunder and fails to cure such breach within thirty (30) calendar days after written notice describing the breach; or (b) goes into liquidation (except for the purposes of amalgamation or reconstruction) receivership (including administrative receivership) has an administrator appointed or makes any arrangement or composition with its creditors.
mag+ Customer’s failure to pay any amounts due on a timely basis will be deemed material breach of this Agreement. Accounts that have fallen into arrears are subject to interest at the rate of 2% per month on any outstanding balance, or the maximum permitted by law, whichever is the greater. Alternatively, without terminating the Agreement, third party may suspend the Third party Service until payment in full. mag+ Customer will continue to be charged for Third party Service fees during any period of suspension. If third party initiates termination of its Service due to mag+ Customer breach, mag+ Customer remains obligated to pay the balance due on mag+ Customer’s account for the remainder of the Third party Service term then in effect, computed in accordance with mag+ Customer’s monthly usage-based service fees, as applicable, and will be billed for such unpaid fees. Third party reserves the right to impose a reconnection fee in the event mag+ Customer Third party Service is suspended. If mag+ Customer terminates the Third party Service for uncured material breach by third party,
mag+ Customer shall be entitled to reimbursement on a pro-rated basis of that portion of mag+ Customer’s prepayment for the Third party Service which covers any time period beyond the termination date.
Any unauthorized use of the Third party Service, or any component thereof will be deemed a material breach of this Agreement. In addition, without terminating the agreement between third party and mag+ Customer, third party, in its sole discretion, may terminate mag+ Customer’s use of the Third party Service if mag+ Customer breaches these Third party Terms.
Upon termination or expiration of the agreement between third party and mag+ Customer, in the event that third party has any Customer Data, mag+ Customer agrees that third party has no obligation to retain the Customer Data, and may delete such Customer Data.
In the event of any expiration or termination of this agreement between third party and mag+ Customer, the restrictions set forth in these Third party Terms- Section 2, Section 4, any amounts unpaid under Section 6, Section 7, Sections 9-13, 16 and 18 shall survive termination.
- REPRESENTATIONS & WARRANTIES
Each party represents and warrants it has the legal power and authority to enter into this Agreement.
Such third party’s represents and warrants that it will provide the Third party Service in a manner consistent with general industry standards. mag+ Customer represents and warrants mag+ Customer has neither falsely identified itself, nor provided any false information to gain access to the Third party Service, nor does any Customer Data for which mag+ Customer is responsible violate the privacy rights of, or defame, any data subject or third party, and that any billing information mag+ Customer has provided is correct.
- DISCLAIMER OF WARRANTIESLIMITATION OF LIABILITY
EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 8 OF THESE THIRD PARTY SERVICE TERMS, THE SERVICE, INCLUDING WITHOUT LIMITATION ALL THIRD PARTY CONTENT, IS PROVIDED TO MAG+ CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY THIRD PARTY AND ITS LICENSORS. THIRD PARTY AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE THIRD PARTY SERVICE OR ANY CONTENT. THIRD PARTY AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF THE THIRD PARTY SERVICE WILL BE ENTIRELY SECURE, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY HARDWARE, SOFTWARE OR SYSTEM NOT PRESCRIBED BY THIRD PARTY , (ii) ALL ERRORS OR DEFECTS WILL BE CORRECTED, OR (iii) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
IN NO EVENT SHALL THIRD PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM MAG+ CUSTOMER, FOR THE THIRD PARTY SERVICE, IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL THIRD PARTY AND/OR ITS LICENSORS BE LIABLE TO MAG+ CUSTOMER FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS THIRD PARTY SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE THIRD PARTY SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE THIRD PARTY SERVICE, OR ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THIRD PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The Third party Service may be subject to limitations, delays, inaccessibility and other problems that are inherent in the use of the Internet. Third party is not responsible and disclaims all liability for any delays, failures or damage resulting from such problems. mag+ Customer is fully responsible for Internet access and connectivity issues.
- MUTUAL INDEMNIFICATION
Third party shall indemnify and hold mag+ Customer harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with a third-party claim (“Claim”) alleging that the Third party Service directly infringes a third parties intellectual property rights; provided that mag+ Customer: (a) promptly gives written notice of the Claim to third party; (b) gives third party sole control of the defense and settlement of the Claim (provided that AML may not settle any Claim unless such settlement releases mag+ Customer of all liability); (c) provide to third party all available information and assistance; and (d) have not compromised or settled such Claim. Third party shall have no indemnification obligation for any Claim arising from the combination of the Third party Service with any of mag+ Customer’s products, services, hardware or system, if such Claim would not have arisen but for such combination, or from any misuse or unauthorized use of the Third party Service.
mag+ Customer shall indemnify and hold third party harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with the Claim of a third party who is not a party to this agreement or data subject alleging that the Customer Data or its use has infringed the rights of, defamed or otherwise caused harm to, a data subject or third party, or violated applicable law; provided in any such case that third party (a) gives written notice of the Claim promptly to mag+ Customer or the appropriate mag+ Customer representative; (b) gives mag+ Customer sole control of the defense and settlement of the Claim (provided that mag+ Customer may not settle any Claim unless such settlement releases third party of all liability and such settlement does not affect third party’s business or Third party Service); (c) provides to mag+ Customer all available information and assistance; and (d) has not compromised or settled such Claim.
Notwithstanding the foregoing, in the event the Third party Service, in third party’s opinion, is likely to or does become the subject of a claim of infringement, third party shall have the right at its sole option and expense to: (a) modify the Service to be non-infringing while preserving substantially equivalent functionality; (b) obtain for mag+ Customer a license to continue using the Third party Service; or (c) terminate this agreement between third party and mag+ Customer, and refund to mag+ Customer a pro rata portion of the prepaid fees paid to third party hereunder for that portion of the term which is beyond the termination date. This Section 11 states Third Party’s sole obligation and mag+ Customer’s exclusive remedy with respect to an infringement .
This section applies to all Confidential Information disclosed during the term. “Confidential Information” consists of this agreement between third party and mag+ Customer (including without limitation all price information), all nonpublic information relating to the Third party Service, the third party content, information relating either party’s business, finances, or customers. Except for the Third party Service and any related software, Confidential Information must be marked as “Confidential” or “Proprietary.”
The party receiving Confidential Information from the other party (“Receiving Party”) agrees: (i) not to disclose, make public or authorize any disclosure or publication of Confidential Information during the Term and for five (5) years thereafter, except as expressly agreed to in writing by the disclosing party; (ii) to take all reasonable and necessary steps to enforce this agreement and to assure that all principals, officers, agents, employees, representatives, consultants or any other persons affiliated in any manner with the Receiving Party do not disclose, or make public, or authorize any disclosure or publication of any Confidential Information; and (iii) not to use Confidential Information for any purpose other than the purposes related to this Agreement.
The Receiving Party may disclose the Confidential Information to its respective officers, principals and employees, attorneys and accountants only to the limited extent necessary to carry out the purpose of this Agreement. To the extent that the Receiving Party desires to make disclosure to any persons other than its officers, principals, or employees, attorneys or accountants, as a condition precedent to disclosure, such recipient must execute a confidentiality/non-use agreement in a form substantially similar to this Section before disclosure is made.
Notwithstanding the above, the Receiving Party will have no liability to the disclosing party with regard to Confidential Information which: (i) was known to the Receiving Party at the time it was disclosed as can be demonstrated by documentary evidence; (ii) is in or enters the public domain through no fault of the Receiving Party; (iii) is disclosed with the prior written approval of the disclosing party; (iv) becomes known to the Receiving Party from a source other than the disclosing party without violation of the disclosing party’s rights; or (v) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, that the Receiving Party will provide prompt notice thereof to enable the disclosing party to seek a protective order or otherwise prevent or narrow such disclosure.
Except as otherwise expressly provided in this agreement between third party and mag+ Customer, no communication from one party to the other shall have any validity under this Agreement unless made in writing by or on behalf of an authorized officer of mag+ Customer or as the case may be by or on behalf of third party.
Any notice or other communication which either party hereto is required or authorized by this agreement to give to the other shall be given either by post in a prepaid letter or by facsimile transmission confirmed by post in a prepaid letter addressed to the other party at the address given in the First Schedule and if that letter is not returned as being undelivered within seven (7) days of dispatch of that letter that notice or communication shall be deemed for the purposes of this Agreement to have been given or made after two days for a letter or four hours for a facsimile transmission.
Either party may change its address for service by notice as provided in this Section 13.
- MODIFICATION TO TERMS
This agreement may not be amended except by a writing signed by an authorized representative of third party and mag+ Customer.
- ASSIGNMENT; CHANGE IN CONTROL
This agreement may only be assigned by either party with the prior written consent of the other party.
- THIRD PARTY RIGHTS
Unless expressly provided in this Agreement, no term of this Agreement is enforceable by any other third party who is not party to this agreement or is not related to mag+. To clarify, mag+ Customer shall indemnify and hold mag+ (as third party’s representative) harmless from any and all attorneys’ fees and/or collection costs incurred in connection with recovering fees due from mag+ Customer for the Third party Service.
- FORCE MAJEURE
Neither party shall be deemed to be in breach of this agreement, or otherwise be liable to the other, by reason of any delay in performance or non-performance of any of its obligations under this agreement to the extent that such delay or non-performance is due to any cause beyond its reasonable control including but not limited to the acts, defaults or omissions of suppliers or sub-contractors or strike, lockout or other form of industrial action (an “Event of Force Majeure”).
The party affected by the Event of Force Majeure shall immediately give the other party written notification of the nature and extent of the event of force majeure and the parties shall enter into bona fide discussions with a view to alleviating its effects or to agreeing upon such alternative arrangements as may be fair and reasonable.
If either party is affected by the Event of Force Majeure and the written notice in relation to the event of force majeure has not been withdrawn within 120 days, the other party shall be at liberty to terminate this agreement with immediate effect by serving a written notice on mag+ Customer. The service of such notice shall be without prejudice to any rights or obligations which have accrued prior to termination.
This agreement between third party and mag+ Customer shall be governed by the substantive laws of Ney York, giving no effect to any conflict of laws provisions. The parties agree that the New York courts are to have exclusive jurisdiction to settle any claim arising out of or in connection with this agreement between third party and mag+ Customer and each party submits to the exclusive jurisdiction of New York courts.
If any provision of this agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between mag+ Customer and third party as a result of this agreement or use of the Third party Service. The failure of a party to enforce any right or provision in this agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. This agreement, together with any exhibits comprises the entire agreement between mag+ Customer and third party and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
- mag+ Designd Software consists of InDesign templates for all supported devices, the mag+ InDesign Plugin for creating interactive documents, and the production tool to assemble the pages.
- mag+ Publish portal for publishing the Apps in iOS/Android/Windows devices.