Last revised: 23.01.2024.
This Master Service Agreement (“MSA” or “Agreement”) is effective as of the effective date of an applicable signed order form ( “Order Form” and such date the “Effective Date”) and is by and between Mily Technologies (“Service Provider”), and the customer set forth on the Order Form (a “Customer”), (each a “Party” and together the “Parties”).
1. Scope of the agreement
1.1. This Agreement, including any document referenced herein, establishes the terms and conditions under which Service Provider will provide SaaS Services, Pilot Project Services, Implementation services and any Associated professional services, to the Customer, as set forth in an applicable Order Form.
This MSA also applies to any negotiation period during which the Parties have signed a binding Order form (hereinafter “Pilot Project”) and which entails that the Customer shall, within the scope of services stipulated in the Order form, be allowed a limited paid access to a customized demo version of Mily Software (hereinafter “Pilot demo”). The Pilot demo is considered confidential information and a trade secret owned by the Service Provider.
1.2. The Customer hereby consents that the Service Provider may amend this MSA or update any document referenced herein or in the Order Form, from time to time in its sole discretion, and such amendments will be effective as soon as the amended MSA/document is posted to the applicable URL. Notwithstanding the foregoing, the Service Provider will not change the MSA or any other document arbitrarily, and, other than in an emergency (including imminent threat to the systems or Services) or as required by law, Service Provider will endeavor to provide the Customer with advance notice of any change to the MSA, provided, that the failure to provide such advance notice will not affect the validity of such changes.
1.3. In the event of conflict, the terms of this MSA will prevail over any other document incorporated by reference herein, except explicitly otherwise stated in such document, and only if this document is signed by an authorized signatory of the Service Provider.
2. Services and support
2.1. Subject to the terms of this Agreement, Service Provider will use commercially reasonable efforts to provide Customer the Services (as described in Order Form), in accordance with the Service Level Terms.
2.2. As part of the registration process, the Customer will identify an administrative username and password for its account. Service Provider reserves the right to refuse registration of or cancel passwords it deems inappropriate. For the Pilot Project, the Service Provider creates an account and temporary password for the limited number of users of the Pilot demo, as per Order form.
2.3. Subject to the terms hereof, Service Provider will provide Customer with reasonable technical support services specified in detail in the Order form, in accordance with standard practice of the Service Provider.
2.4. During the Pilot Project, the Customer may request certain changes and modifications to the Pilot demo. Changes and Modifications will generally fall into two categories:
- “Soft” changes which have no cost impact to the agreed upon fees. These changes will be incorporated at no additional charge.
- “Hard” changes which may impact both fees and term of use of Pilot demo. These changes will be incorporated as edits to the Pilot demo. The Service Provider will quote a reasonable additional fee to make “Hard” Changes, and the Customer will pay for any elected “Hard” changes and the Service Provider is authorized to issue an invoice for these additional fees.
3. Responsibilities and restrictions
3.1. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, pilot demo, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted in writing by Service Provider or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
3.2. With respect to any Software that is distributed or provided to Customer for use on Customers premises or devices, Service Provider hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software only in connection with the Services during the term of this Agreement, as stipulated in the Order form. Explicitly excluded from use are activities that in any way violate the security or integrity of the Software, for example through penetration tests. The Service Provider is not obliged to deliver Software or its source code in physical form or to make it physically available to the Customer within the scope of the Services. The Customer is aware that access to and use of the Software can only take place via the Internet.
3.3. Customer represents, covenants, and warrants that it will use the Services only in compliance with standard policies of the Service Provider published (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless the Service Provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Service Provider has no obligation to monitor Customer’s use of the Services, Service Provider may do so and may prohibit any use of the Services it believes may be, or alleged to be, in violation of the foregoing.
3.4. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3.5. Customer shall be responsible for lawful possession, proper uploading of data and the accuracy of the uploaded data necessary to use the Services.
4. Confidentiality; proprietary rights; data protection
4.1. If the Parties have a separate mutual nondisclosure agreement, that agreement will control (the “Separate MNDA”). Otherwise, the following shall apply - each Party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Service Provider includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Service Provider to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it, prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
4.2. Service Provider shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation services, Associated professional services or support, and (c) all intellectual property rights related to any of the foregoing. Notwithstanding anything to the contrary, Service Provider shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Service Provider will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Service Provider’s offerings, and (ii) disclose such data solely in de-identified form in connection with its business; respecting security and precautionary measures such as encryption, anonymization or pseudonymization. No rights or licenses are granted except as expressly set forth herein.
4.3. In terms of regulations governing the protection of personal data, the Customer is considered the Data Controller, and the Service Provider is considered the Data Processor when processing any information that may identify an individual (“Personal Data”) as part of the Services. With regard to the rights and obligations of the Service Provider in relation to data protection law, the parties enter into a separate Data Processing Agreement (DPA), which shall also reflect the technical and organizational measures for data protection.
5. Payment of fees
5.1. Customer will pay Service Provider the applicable fees as set forth in the Order Form, in accordance with the terms therein (the “Fees”). All Fees are VAT excluded, and VAT shall be calculated, when applicable, subsequently in accordance with the tax regulations of either the Service Provider’s or the Customer’s country. The Fees also do not include any other prospective levies, as well as any other prospective taxes and other levies of the Customer’s country; which shall be borne by the Customer. The fee for the Pilot Project (hereinafter “the Pilot fee”) shall be paid in advance upon signing of the Order Form. If Customer’s use of the Services exceeds agreed Data Volume Bucket i.e. the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. The Service Provider may postpone the creation of Pilot demo or any elected “Hard” changes until it receives confirmation on payment of applicable fee by the Customer. Service Provider reserves the right to change the Fees or applicable charges and to institute new charges and Fees during the Initial Service Term or then-current renewal term, upon sixty (60) days prior notice to Customer (which may be sent by email). If Customer believes that Service Provider has billed Customer incorrectly, Customer must contact Service Provider no later than 60 days after the issuance of the invoice in which the error or problem appeared, in order to determine the merits of the complaint and, in case of accepting the complaint, approve the credit. Inquiries should be directed to the Service Provider’s customer support department.
5.2. Service Provider may choose to bill through an invoice, in which case, full payment for any issued invoice must be received by Service Provider fifteen (15) days after the date of issuance of the invoice. For all unpaid amounts, the Customer is considered to be in default by law and is deemed to pay the highest interest rate permitted by law, per month plus all expenses of collection and may result in immediate termination of Service. Any further claims for damages shall remain unaffected.
6. Term and termination
6.1. This Agreement is valid for the Pilot Term or Initial Service Term as specified in the Order Form.
6.2. Subject to earlier termination as provided below, the Initial Service Term shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either Party requests in writing a termination at least thirty (30) days prior to the end of the then-current term. Pilot Term shall not be automatically renewed.
6.3. In addition to any other remedies it may have, either Party may also terminate this Agreement upon thirty (30) days’ written notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. The written notice for Pilot Project is fifteen (15) days. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6.4. Taking into account the provisions of item 6.3 above, in case the Customer has paid an annual fee for the Services in advance, and this Agreement is terminated prior to expiration of the one-year period for which the annual fee was paid, the Service Provider will deduct from the annual fee an aggregate sum of monthly fee multiplied by the number of months in which the Services are provided, and the amount representing the difference between the annual fee and the above determined aggregate monthly fees will be returned to the Customer, which further Customer represents and warrants means the Service Provider has no outstanding obligations to the Customer, i.e. that the Customer shall not seek any amount in the name of unpaid fees or damages due to termination or unjust enrichment in court or any other proceedings.
7. Warranty and disclaimer
7.1. Service Provider shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Service Provider or by third-party providers, or because of other causes beyond Service Provider’s reasonable control, but Service Provider shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Service Provider does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. Except as expressly set forth in this section, the Services are provided “as is” and Service Provider disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement. Liability without fault for initial defects of the software is excluded. In assessing whether or not there is a fault on the part of the Service Provider, the Customer acknowledges that cloud services by their nature may in fact not be error-free.
7.2. In respect to the Service Lever Term, the Customer will receive a pro-rated credit against future fees as follows: Service Provider’s remedy in connection with Service availability will be that for each period of downtime lasting longer than one hour, Service Provider will credit the Customer 2% of monthly Service fees for each period of 30 or more consecutive minutes of downtime (hereinafter ”downtime credit”); provided that no more than one such credit will accrue per day. Downtime will begin to accrue as soon as Customer (with written notice to Service Provider) recognizes that downtime is taking place and continues until the availability of Services is restored. In order to receive downtime credit, Customer must notify Service Provider in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and will not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Service Provider will only apply a credit to the month in which the incident occurred. Liability under the MSA remains unaffected by the payment of downtime credits. However, downtime credits are deducted from possible claims for damages. This provision 7.2. does not apply to Pilot projects.
8. Force majeure
8.1. In the event either party shall be delayed or hindered in or prevented from the performance of any act required hereunder by reasons of strike, lockouts, labor troubles, inability to procure materials or services, failure of power or restrictive government or judicial orders, or decrees, riots, insurrection, war, inclement weather, sickness due to Covid 19 (or similar illnesses) or other reason or cause beyond that Party’s control, then performance of such act (except for the payment of money owed) shall be excused for the period of such delay.
8.2. The Party that claims the existence of force majeure circumstances shall be obliged to inform the other Party without delay, at the latest within ten days after the commencement and termination of the circumstances of force majeure.
9. Limitation of liability
9.1. Notwithstanding anything to the contrary, Service Provider and its suppliers (including, without limitation, all equipment and technology suppliers), officers, affiliates, agents, contractors and employees (all jointly referred to as “vicarious agents”) shall be liable as follows: Claims for damages for breach of duty and in tort are excluded, except for foreseeable, typical damages from the violation of essential contractual obligations or the damages are based on intentional or grossly negligent breaches of duty by Service Provider, its legal representatives or vicarious agents. Liability is furthermore excluded in the following cases:
a) errors or interruptions of use or loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business;
b) any indirect, exemplary, incidental, special or consequential damages;
c) any matter beyond Service Provider’s reasonable control
9.2. If the Service Provider is obligated to pay damages according to this MSA, the amount of a claim for damages shall be limited to the fees paid by Customer to the Service Provider for the Services under the Order Form in the 6 months prior to the act that gave rise to the liability. In case of a Pilot Project, the total amount of claims for damages shall be limited to the amount of the Pilot fee.
10. Miscellaneous
10.1. If any provision of this MSA or any part of any provision (the “Offending Provision”) is declared or becomes unenforceable, invalid or illegal for any reason, that provision will be limited or eliminated to the minimum extent necessary so the remainder of this MSA remains in full force and effect.
10.2. This MSA shall be binding upon and inure to the benefit of Customer and Service Provider and their respective successors. This MSA is not assignable, transferable or sublicensable by Customer except with prior written consent of the Service Provider. The Service Provider may transfer and assign any of its rights and obligations under this MSA without consent.
10.3. The Customer hereby consents that the Service Provider may use its trademark and company name on its web page, marketing and sales materials, with appropriate reference to the business relationship between the Parties.
10.4. This MSA, together with any active Order Form and, if applicable, the Separate MNDA, contains the entire understanding of the Parties with respect to the subject matter herein, and supersedes all previous agreements (oral and written), negotiations and discussions.
10.5. For the purposes of this MSA, the parties hereto are independent contractors, and nothing contained in this MSA or any related Order Form shall be construed to place them in the relationship of partners, principal and agent, employer/employee, or joint venture partners. The Customer shall not have the power or right to bind or obligate the Service Provider in any respect whatsoever, nor shall it hold itself out as having such authority. The Parties agree to conduct negotiations in good faith.
10.6. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
10.7. All notices under this MSA will be in writing and will be deemed to have been duly given 1) when received, if personally delivered; 2) when receipt is electronically confirmed, if transmitted by facsimile or e-mail; 3) the day after it is sent, if sent for next day delivery by recognized delivery service; and 4) upon receipt, if sent by certified or registered mail, return receipt requested.
10.8. This Agreement and any dispute or claim arising out of or in connection therewith shall regardless of the customer's place of business be governed by and construed in accordance with Laws of Germany, under exclusion of its conflict of law rules and the provisions of the Vienna Convention on the Sales of Goods. The Parties have agreed to try and resolve amicably all disputes arising out of or in connection with this Agreement. If an amicable resolution is impossible within 90 days, all disputes arising out of or in connection with this Agreement shall be finally settled by competent court in Munich, Germany, being the exclusive place of jurisdiction.