THIS MASTER SUBSCRIPTION AGREEMENT (the “Agreement”), dated effective as of Customer’s Activation Date, between Metropolitan Risk Services, Inc., a New York corporation (“Metropolitan”), doing business as OODA Risk and the customer whose name and contact information is set forth on the Customer Subscription Page (“Customer”).
BY EXECUTING THE CUSTOMER SIGNATURE PAGE, CUSTOMER AND CUSTOMER’S AUTHORIZED USERS AGREE TO THE TERMS OF THIS AGREEMENT. THE INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF THE CUSTOMER REPRESENTS THAT SUCH INDIVIDUAL HAS THE AUTHORITY TO BIND THE CUSTOMER, CUSTOMER’S AFFILIATES AND CUSTOMER’S AUTHORIZED USERS TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
In consideration of the mutual covenants and agreements contained herein, Customer , and Customer’s Authorized Users, agree as follows:
1. DEFINITIONS.
1.1. Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the Customer. “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2. “Activation Date” means the date that Metropolitan countersigns the Customer Invoice Subscription Page.
1.3. “Add-on Products” means separately priced, optional add-on software, Software features, products or services, including Risk Rocket and Comp Care Advisory Services, that are offered as part of the Metropolitan Service.
1.4. “Administrator User” means Customer’s primary contact person with Metropolitan identified on Appendix A, who has full access to the Software and has the right and ability to control access for all other Authorized Users (i.e., can grant or restrict Software access for other Authorized Users).
1.5. “Authorized User” means any person that Customer allows to have access to the Software and Customer’s account, including Customer’s employees and staff and any third parties that Customer allows to view or use the Metropolitan Service.
1.6. “Confidential Information” means all proprietary and confidential information exchanged by the parties or to which access is provided by one Party to the other, including the Software, trade secrets; the substantive terms of this Agreement; a party’s non-public business and financial information, including without limitation Customer Data; any written materials marked as confidential and any other information, including visual or oral information, which reasonably should be understood to be confidential. Confidential Information does not include information that the receiving party can prove: (a) is now or later becomes generally available to the public without fault of the receiving party; (b) was rightfully in the receiving party’s possession prior to its disclosure by the disclosing party; (c) is independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (d) is obtained by the receiving party without obligation of confidentiality from a third party who has the right to disclose it. The receiving party may disclose Confidential Information to the extent required under a judicial or legislative order or proceeding; provided that the receiving party gives the disclosing party, if feasible, prior notice and an opportunity to respond or object to such disclosure.
1.7. “Customer “ means only the entity listed on the Customer Subscription Page. Should additional entities need to be contemplated by this agreement they can be added by specific written request as an addendum to the “Master Subscription Agreement”
1.7.1 “Customer Data” means all information and data input by Customer and its Authorized Users into the Software, including all data associated with and/or provided by Customer and its Customers.
1.8. “Data Import” means use of the Software’s data import tool; specifically, use of the Metropolitan system to import data.
1.9. “Documentation” means the user instructions and/or user manual for the Metropolitan Service, which are in electronic format and shall be made available to Customer during the term of this Agreement.
1.10. “Hosted Website” means a website that allows Customer’s Customers to login online and manage their Accounts.
1.11. “Malicious Code” means code, files, script, agents or programs intended to harm, including, for example, viruses, worms, time bombs and Trojan horses.
1.12. “Metropolitan Service” means Metropolitan’s O.O.D.A. Risk System and any Add-on Products added by Customer at any time during the term of this Agreement. The specific Add-on Products to be provided to Customer as part of the Metropolitan Service shall be specified in customer subscription forming a part of this Agreement.
1.13. “Modifications” means bug fixes, updates, upgrades, enhancements, new versions, and other modifications to the Software and Metropolitan Service that are provided by Metropolitan to Metropolitan’s Customer base.
1.14. “Software” means Metropolitan’s computer software that Customer is licensed to access and use as part of the Metropolitan Service, including all systems, modules, web pages, websites, databases, software code, technology, etc., provided by Metropolitan or pursuant to licenses granted to Metropolitan. “Software” includes all Modifications to such Software, and all Documentation and updates thereof.
2. LICENSE OF METROPOLITAN SERVICE AND SOFTWARE.
2.1. Metropolitan Service. Metropolitan grants Customer the non-exclusive right and license to access and use the Metropolitan Service, including the Software, subject to the terms and conditions of this Agreement. Metropolitan will make the Metropolitan Service available for Customer to access during the term of this Agreement, subject to the terms and limitations set forth herein. The Metropolitan Service may be hosted on Metropolitan’s servers or, at Metropolitan’s option, on the servers of a third party that is in the business of hosting web-based applications. Metropolitan hereby grants to Customer, for the internal use of Customer only, a personal, non-transferable and non-exclusive license to use the Documentation provided hereunder to support its authorized use of the Metropolitan Service. During the term of this Agreement, Customer may add available additional products or services to the Metropolitan Service by issuing an Order Form for the available additional products or services.
2.2. Access and URL. During the term of this Agreement, provided that Customer has paid all fees due and owing and is in compliance with the terms of this Agreement, Customer and its Authorized Users shall have the right to and will be able to access the Metropolitan Service and use the Software.
2.3. Authorized Users. Authorized Users are hereby granted a nonexclusive, non-transferable right to access and use the Metropolitan Service and Software pursuant to the license rights granted to the Customer under this Agreement. However, Metropolitan’s commitments, representations, and indemnities set forth in this Agreement apply only to Customer. The Software is made available to Authorized Users on an “AS IS” basis, and Metropolitan disclaims any and all liability to Authorized Users. An Authorized User’s right and license to use the Metropolitan Service and Software will terminate automatically (i) if this Agreement terminates for any reason, or (ii) if the Authorized User’s employment or engagement with Customer terminates for any reason. Customer or Metropolitan may also terminate an Authorized User’s rights under this Agreement at any time if the Authorized User breaches the terms of this Agreement.
2.4. Restrictions. Customer and its Authorized Users will comply with the following restrictions and limitations:
(a) not copy the content on the Metropolitan Service website or the Documentation, other than Customer Data;
(b) not modify, alter, create derivative works of, reverse engineer, decompile or disassemble the Software, or modify the Documentation;
(c) not sublicense, distribute or sell the Metropolitan Service or Software or its license thereto, or allow any third parties to use or access the Metropolitan Service or Software in a “service bureau” mode;
(d) comply with all applicable federal, state and local laws in connection with this Agreement and its use of the Metropolitan Service; and
(e) take all reasonable precautions to prevent Customer’s employees and consultants from making unauthorized copies of the Software or misusing the Software in any way that would constitute a breach of this Agreement.
If Customer discovers any such problems, it will promptly notify Metropolitan and take commercially reasonable actions to resolve the problem, including any actions reasonably requested by Metropolitan, as soon as reasonably possible.
2.5. Administrative User. Customer will assign one Authorized User to be its Administrative User. An authorized representative of Customer will notify Metropolitan of the name and contact information for the Administrative User, and any changes to such information. The Administrative User is given administrative access to Customer’s account on the Software and can grant or restrict Software access for other Authorized Users. The Administrative User is also the primary contact person for Customer with Metropolitan, and such person’s instructions and requests to Metropolitan will have priority over the instructions or requests of any other employee or representative of Customer.
3. OWNERSHIP.
3.1. Metropolitan Rights. Metropolitan retains all right, title and interest, including without limitation all patents and patent rights, trademarks, service marks, copyrights, trade secrets and other proprietary rights, in and to the Metropolitan Service, including the Software, Documentation and all content provided by Metropolitan as part of the Metropolitan Service, including any derivative works, subject to the licenses set forth in this Agreement. Metropolitan specifically reserves all rights not expressly granted to Customer in this Agreement.
3.2. Reservation of Rights. Subject to the limited rights expressly granted to Customer under this Agreement, Metropolitan and its licensors and content providers reserve all of Metropolitan’s and Metropolitan’s licensors’ right, title and interest in and to the Services and content, including all of Metropolitan’s and Metropolitan’s licensors’ related intellectual property rights. No rights are granted to Customer under this Agreement other than as expressly set forth in this Agreement.
3.3. Customer Data. Customer owns and shall retain all right, title and interest in and to Customer Data, subject to Metropolitan’s rights as set forth below. Metropolitan will use commercially reasonable efforts to safeguard the security, confidentiality and integrity of Customer Data. Customer grants Metropolitan the right to use, reproduce, modify and distribute Customer Data as necessary or appropriate to transmit, store, encrypt, calculate, and analyze the Customer Data, create and distribute reports, and to provide, modify and improve the Metropolitan Service and Software. To the extent permitted by applicable law, Customer also grants Metropolitan the right to share Customer Data with third parties in connection with Metropolitan’s general activities of conducting business, including providing Customer with possible solutions to their business needs, and developing and providing third party integrations with the Software. Metropolitan also has the right to collect, aggregate and remove all personally identifiable information from Customer Data, and to retain, use and disclose such de-identified data (the “De-Identified Data”) for benchmarking, product and service development, development of best practices, and for research and statistical purposes without reimbursement or notification to, or consent or authorization from, Customer. Metropolitan shall own only such De-Identified Data, including any calculations, functions, features, or other modifications of the Customer Data, excluding the Customer Data in its raw form.
Metropolitan shall exercise commercially reasonable care for the protection of personally identifiable information included in Customer Data processed by or stored pursuant to the Services and shall maintain reasonable data integrity safeguards against the deletion or alteration of such data, all in accordance with the safeguards and procedures identified in the Contract Documents. In the event that any such data is compromised, released, lost or destroyed, or there is any unauthorized intrusion into systems operated by Metropolitan adversely affecting Customer Data, then Metropolitan shall notify Customer within twenty-four (24) hours after Metropolitan’s discovery thereof and use commercially reasonable efforts to correct the matter. The parties acknowledge that such initial notice may be limited to the fact that a breach has occurred. Metropolitan will reasonably investigate any security breaches and keep Customer informed as material facts are discovered.
4. CUSTOMER OBLIGATIONS.
4.1. Obligations. Customer will:
(a) be responsible for its Authorized Users’ compliance with this Agreement;
(b) be responsible for the accuracy, quality and legality of Customer Data and of the means by which Customer acquired such data;
(c) use commercially reasonable efforts to prevent unauthorized access to or use of the Metropolitan Service, and notify Company promptly of any such unauthorized access or use;
(d) use the Metropolitan Service only in accordance with its Documentation and applicable laws and government regulations;
(e) not make the Metropolitan Service available to anyone other than Authorized Users,
(f) not use the Metropolitan Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights,
(g) not use the Metropolitan Service to store or transmit any Malicious Code,
(h) not interfere with or disrupt the integrity or performance of the Metropolitan Service or third party data contained therein,
(i) not attempt to gain unauthorized access to the Metropolitan Service or its related systems or networks,
(j) not permit direct or indirect access to or use of any Metropolitan Services in a way that circumvents usage limitations or use any Metropolitan intellectual property except as permitted under this Agreement;
(k) not copy a Metropolitan Service or any part, feature, function or user interface;
(l) not reverse engineer any Metropolitan Service or content to build a competitive product or service; and
(m) conduct itself, and require that its employees conduct themselves, in a professional manner during interactions with all Metropolitan personnel.
4.2. Usage Limitations. Metropolitan Services and content are subject to usage limits, including, for example, the quantities specified in Order Forms and Documentation. Unless otherwise specified, (a) a quantity in an Order Form refers to Authorized Users, and the Service or Content may not be accessed by more than that number of Authorized Users, (b) an Authorized User’s password may not be shared with any other individual, and (c) except as set forth in an Order Form, an Authorized User identification may only be reassigned to a new individual replacing one who will no longer use the Service or Content. If You exceed a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Metropolitan’s request, and/or pay any invoice for excess usage in accordance with Section 6.2 (Invoicing and Payment).
4.3. Customer Security Requirements. Customer is solely responsible for the security of data residing on server(s) owned or operated by Customer or a third party designated by Customer (e.g., a web hosting company, processor, or other service provider), including being responsible for the security of all data residing outside of the Metropolitan Service, as well as keeping confidential all usernames and passwords of Authorized Users in order to avoid unauthorized access to the Metropolitan Service.
4.4. Metropolitan Security Requirements. Metropolitan will use commercially reasonable efforts to safeguard the security of the Metropolitan Service, including processes of encryption of data, data security breach and incident management policies, data backup policies and other procedures to ensure both the safety and security of the data residing in the Metropolitan Service. In compliance with PCI-DSS, Metropolitan is responsible for the security of cardholder data that resides on the Metropolitan Service. This includes securing cardholder data that is stored, processed, or transmitted on behalf of the Customer, to ensure the security of cardholder data and its environment.
5. TERMS OF PAYMENT.
5.1. Fees and Costs: All pricing and transactions between Metropolitan and Customer will be in U.S. Dollars. Customer is responsible for any and all fees incurred, in accordance with the Pricing Table and payment terms set forth in customer subscription page Metropolitan charges a separate price for Add-on Products. If Customer has selected one or more Add-on Products, the Pricing Table sets forth the fees for such Add-on Products. After the first anniversary of the Activation Date, the Pricing Table is subject to modification by Metropolitan from time to time, effective upon no less than thirty (30) days written notice to Customer, unless Customer and Metropolitan agree to lock in this Agreement and pricing for an additional set term as set forth in customer subscription page. All fees are non-refundable.
5.2. Billing Method. Customer will provide Metropolitan with valid and updated credit card information. Customer authorizes Metropolitan to charge such credit card for all Metropolitan Services listed in the customer subscription page. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the customer subscription page. If Metropolitan agrees to a payment method other than a credit card, Metropolitan will invoice Customer in advance and otherwise in accordance with the terms set forth in customer subscription page. Unless otherwise stated in “Customer Subscription Page”., invoiced charges are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Metropolitan and notifying Metropolitan of any changes to such information.
5.3. Late Fees. If Customer’s account holds a balance due for a period of thirty days (30) days after the due date (which is the 1st day of each month), Customer’s account will be assessed a five percent (5%) late fee on the total outstanding balance on the account, with a minimum of $30.
5.4. Remedies for Nonpayment: If Customer’s account is not current then Metropolitan has the option and right to require payment on the account by partially or fully suspending and blocking Customer’s and its Authorized Users’ access to the Software until all past-due amounts are paid. Customer’s account may be assessed additional fees for blocking or unblocking the account due to late payment.
5.5. Payment Disputes. Metropolitan will not exercise its rights under Section 5.3 (Late Fees) or Section 5.4 (Remedies for Nonpayment) if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
5.6. Taxes. Customer is responsible for all applicable taxes on the fees paid by Customer to Metropolitan, including, without limitation, any and all sales, use, value-added and personal property taxes, (excluding taxes on Metropolitan’s net income).
6. CONFIDENTIAL INFORMATION.
6.1. Except as otherwise expressly provided in this Agreement, Metropolitan and Customer each agrees that all Confidential Information communicated to it by the other, whether before or after the date hereof, will be and will be deemed to have been received in confidence and will be used only for purposes of each Party’s (i) carrying out the terms of this Agreement, (ii) in Customer’s case, using, managing, maintaining or replacing the System as its internal needs dictate, and (iii) as otherwise permitted by the Agreement.
6.2. Each of Metropolitan and Customer agrees to use the same means as it uses to protect its own confidential information, but in no event less than reasonable means, to prevent the unauthorized use or disclosure and to protect the confidentiality thereof. Except as otherwise permitted by the Agreement, no such information will be disclosed by the recipient party without the prior written consent of the other party; provided, however, that each party may disclose the other party’s confidential information to those of the recipient party’s employees, contractors, agents, attorneys, auditors, and insurers (if applicable) who have a need to have access to such information in connection with their employment (or engagement, if applicable) by the recipient party. The recipient party takes reasonable steps to require such individuals and entities to be bound confidentiality obligations no less restrictive than those required hereunder.
7. WARRANTIES AND LIMITATION OF LIABILITIES.
7.1. Customer Warranties. Customer represents and warrants that:
(a) Customer has the necessary right, power and authority to execute this Agreement and to perform Customer’s obligations herein;
(b) no authorization or approval from any third party is required in connection with Customer’s execution, delivery or performance of this Agreement;
(c) this Agreement constitutes a legal, valid and binding obligation of Customer, enforceable against Customer in accordance with its terms;
(d) Customer’s obligations under this Agreement do not violate any law or breach any other agreement to which Customer is bound;
(e) all representations and statements made by Customer in this Agreement, or in any other document relating hereto by Customer or on Customer’s behalf, are true, accurate and complete in all material respects; and
(f) Customer will comply, at its sole expense, with all laws, policies, guidelines, regulations, ordinances or rules applicable to Customer and this Agreement.
8. Metropolitan Warranties. Metropolitan represents and warrants that:
(a) Metropolitan has the necessary right, power and authority to execute this Agreement, to grant the rights herein granted to Customer and to perform Metropolitan’s obligations herein;
(b) no authorization or approval from any third party is required in connection with Metropolitan’s execution, delivery or performance of this Agreement;
(c) this Agreement constitutes a legal, valid and binding obligation of Metropolitan, enforceable against Metropolitan in accordance with its terms; and
(d) the Services shall be provided in a good workmanlike manner.
(e) the Services including the Software does not and will not contain any Malicious Code.
8.1. Limitation of Warranties; Disclaimers. Metropolitan uses diligent efforts to ensure that the Software and the Metropolitan Service are available, uninterrupted, and provide timely and secure functionality. However, Metropolitan does not warrant or guarantee that the Software or the Metropolitan Service will be uninterrupted, error-free, or free from any potential or actual security threats. Except as expressly set forth above in this Section and in any Add-on Products Addenda annexed to this Agreement, the Metropolitan Service and Software, and other services of Metropolitan, are provided to Customer and its Authorized Users on an “AS IS, AS AVAILABLE” basis. METROPOLITAN AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITH RESPECT TO MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS OF THE METROPOLITAN SERVICE OR SOFTWARE FOR ANY PARTICULAR PURPOSE OR INTENDED USE. METROPOLITAN MAKES NO WARRANTIES WHATSOEVER AND IS NOT LIABLE FOR ANY LOSS OR DAMAGE THAT MAY BE INCURRED BY CUSTOMER AS A RESULT OF USING ANY THIRD PARTY SERVICE OR SOFTWARE, EVEN IF LINKED TO OR INTEGRATED IN THE METROPOLITAN SERVICE OR SOFTWARE. Metropolitan is not responsible or liable for damage, malfunction, or performance failures resulting from misuse, physical abuse, improper operation, the environment or other causes beyond Metropolitan’s exclusive control. No employee of Metropolitan or any third party has the right to make any representation or warranty regarding the Metropolitan Service, except as expressly set forth in this Agreement.
Without limiting the foregoing, Metropolitan does not make any representation, warranty or guarantee as to the results that may be obtained from Customer’s use of the Metropolitan Service or Software or as to the accuracy or reliability of any information therein, or recommendations or information offered by any Metropolitan personnel. Customer expressly acknowledges and agrees that Customer’s use of the Metropolitan Service does not in any way guarantee the security or reliability of Customer’s website. Customer understands and agrees that Metropolitan shall bear no risk with respect to Customer’s sale, products or services, including without limitation, any risk associated with the security of Customer’s website, credit card fraud or chargebacks, or any risk associated with Customer’s failure to register with the appropriate governmental agencies or obtaining the appropriate licenses to conduct business, including charging interest, and finance charges, or any other regulatory requirements.
If Customer has selected Comp Care Risk Services as an Add-on Product, Metropolitan expressly disclaims (i) any warranties concerning the accuracy or collectability of the coverages identified in the certificates of insurance, policies or endorsements managed by Metropolitan under this Agreement, (ii) any liability due coverage gaps, uninsured claims, or any damages that may be incurred by Customer due to inadequate or uncollectible insurance for any reason; (iii) the accuracy and sufficiency of any information and data content provided to Metropolitan for or on behalf of Customer, and (iv) any liability for loss of Customer data as a result of any unauthorized use or access to the Risk Management System.
If Customer has selected Risk Rocket Services as an Add-on Product, Metropolitan expressly disclaims (i) any warranties concerning the accuracy or collectability of the coverage’s , reviewed, identified in the certificates of insurance, policies or endorsements managed by Metropolitan under this Agreement, (ii) any liability due coverage gaps, uninsured claims, or any damages that may be incurred by Customer due to inadequate or uncollectible insurance for any reason; (iii) the accuracy and sufficiency of any information and data content provided to Metropolitan for or on behalf of Customer, and (iv) any liability for loss of Customer data as a result of any unauthorized use or access to the Risk Management System.
Customer expressly agrees that Metropolitan shall not be liable for any loss or damages whatsoever arising from or caused by (i) Customer’s failure to properly download, activate, integrate or manage the Software; (ii) any fraudulent transactions processed through Customer’s payment gateway account(s); (iii) disruption of the Metropolitan Service; (iv) actions or inactions of any third party, including without limitation, merchant service providers, payment processors, bank URL support, email systems; or (v) any person’s unauthorized access to Customer Data (including credit card number and other personally identifiable information), transaction data or personal information.
8.2. Limitations of Liability. IN NO EVENT WILL METROPOLITAN, ITS AFFILIATES OR LICENSORS BE LIABLE FOR LOST DATA, LOST PROFITS OR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE FURNISHING, PERFORMANCE, OR USE OF ANY SOFTWARE OR SERVICES PROVIDED FOR IN THIS AGREEMENT. METROPOLITAN’S TOTAL AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF THE CLAIM(S), INCLUDING INDEMNIFICATION, WILL NOT IN ANY EVENT EXCEED THE AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE [THREE (3)] MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. This limitation shall apply whether or not the alleged breach by Metropolitan is a breach of condition or fundamental term, or a fundamental breach.
9. INDEMNIFICATION.
9.1. By Metropolitan. Metropolitan will defend Customer against any and all third party claims or suits (each a “Claim”) that the Metropolitan Service infringes any third party U.S. patent that has issued as of the effective date, copyright or trademark or misappropriates any trade secret, and pay any liabilities, damages, costs and expenses (including reasonable attorneys’ fees) finally awarded therein or paid in settlement. Metropolitan may, at its option and expense, participate in the defense of the Claim with counsel of its own choosing. If the Metropolitan Service is finally held or believed by Metropolitan to infringe, Metropolitan shall use reasonable efforts to obtain a license under the rights that have been infringed, to modify the Metropolitan Service so it is noninfringing or to provide to Customer a substitute service and/or software that is noninfringing; provided that if such options are, in Metropolitan’s sole discretion, not commercially reasonable, Metropolitan may terminate the applicable Metropolitan Service or this Agreement upon written notice to Customer, in which event Metropolitan shall refund to Customer all prepaid fees paid for any period after termination of this Agreement, as well as for the twelve (12) month period prior to termination during which Customer was prevented from accessing the Metropolitan Service. Metropolitan shall have no liability for infringement based on modification of the Metropolitan Service by any party other than Metropolitan or the combination or use of the Metropolitan Service with any software, equipment, product or process not furnished by Metropolitan, if use of the Metropolitan Service alone and in their current, unmodified form would not have been an infringement. THIS SECTION STATES METROPOLITAN’S ENTIRE OBLIGATION WITH RESPECT TO ANY CLAIM FOR INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
9.2. By Customer. If any action is instituted by a third party (including any Customer or business partner of Customer) against Metropolitan (a) arising out of or relating to Customer’s use of the Metropolitan Service or Software, including without limitation (i) any breach or alleged breach by Customer of any of its representations, warranties, or obligations set forth in this Agreement; (ii) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by Customer or its employees, agents or Customers; or (iii) any claims associated with the provision of services by Customer to its Customers; or (b) alleging that the Customer Data, or the use of Customer Data pursuant to this Agreement, infringes the intellectual property or other right of a third party or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of Metropolitan and shall pay all damages attributable to such claim which are finally awarded against Metropolitan or paid in settlement of such claim. Customer shall have no obligation under this Section for any claim or action that is described in Section 9.1 above or arises out of a breach of this Agreement or misconduct by Metropolitan.
9.3. Indemnification Procedure. Any party that is seeking to be indemnified under this Section 9 (an “Indemnified Party”) for a third party Claim must (i) promptly notify the other party (the “Indemnifying Party”) of the Claim; and (ii) give the Indemnifying Party the sole control over the defense of such Claim. However, if an Indemnified Party fails to notify the Indemnifying Party promptly but in no event later than thirty (30) days from receipt of a Claim, the Indemnifying Party will be relieved of its obligations under this Section 9 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure. The Indemnifying Party may settle or compromise a Claim without the Indemnified Party’s prior approval of any such settlement or compromise only if (a) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (b) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and (c) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party. Upon the Indemnifying Party’s assumption of the defense of such Claim, the Indemnified Party will reasonably cooperate with the Indemnifying Party in such defense, at the Indemnifying Party’s expense.
10. TERM AND TERMINATION.
10.1. Term. This Agreement commences on the date that Metropolitan countersigned Customer’s Signature Page and continues for the period specified in Appendix A, as extended in accordance with the terms of Appendix A. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any renewal term will increase by up to [7%] above the applicable pricing in the prior term, unless Metropolitan provides Customer notice of different pricing at least 60 days prior to the applicable renewal term.
10.2. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.3. Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 10.2 (Termination), Metropolitan will refund Customer any prepaid fees covering the remainder of the term after the effective date of termination. If this Agreement is terminated by Metropolitan in accordance with Section 10.2, Customer will pay any unpaid fees covering the remainder of the term set forth in Appendix A. In no event will termination relieve Customer of its obligation to pay any fees payable to Metropolitan for the period prior to the effective date of termination.
10.4. Customer Data Portability and Deletion. Upon termination of this Agreement for any reason, Customer shall immediately cease using the Metropolitan Service and Software. After termination Customer will not have any access to the Software or the Customer Data stored therein. After termination, Metropolitan has no obligation whatsoever to maintain or store Customer Data and Metropolitan may, in its sole discretion, delete or remove Customer Data from its system; provided, however, upon request of Customer made within 30 days after termination or expiration, and upon payment of all fees due and remaining unpaid upon the date of termination, Metropolitan will make Customer’s Data available to Customer for export or download as otherwise in Metropolitan’s possession or control, unless legally prohibited. Metropolitan reserves the right to store the Customer Data after termination to comply with applicable laws and regulations, use the Customer Data in accordance with Section 4.2, subject to ongoing compliance with the confidentiality and security provisions of this Agreement. Each party shall promptly return to the other party or destroy all Confidential Information of the other party. Customer shall pay all accrued charges and fees within thirty (30) days of the date of termination. Sections 2, 3, 4, 4, 5, 6, 7, 8, and 9.4 and 11 shall survive any termination of this Agreement.
11. MISCELLANEOUS.
11.1. Export Compliance. The Services, Content, other technology made available by Metropolitan, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Authorized Users to access or use any Service or Content in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
11.2. DISPUTE RESOLUTION / ARBITRATION. IN THE EVENT OF ANY CLAIMS, DISPUTES OR DISAGREEMENTS BETWEEN THE PARTIES (A “DISPUTE”) ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, ANY SUBSEQUENT AMENDMENT THEREOF, SUCH DISPUTE SHALL BE REFERRED TO AND FINALLY DETERMINED BY ARBITRATION. THE DISPUTE SHALL BE REFERRED TO AND FINALLY DETERMINED BY A SINGLE ARBITRATOR IN ACCORDANCE WITH THE THEN APPLICABLE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION AND SHALL BE HELD IN NEW YORK, NEW YORK. ANY MONEY JUDGMENT AWARDED IN FAVOR OF CUSTOMER AND AGAINST METROPOLITAN SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO METROPOLITAN FOR THE TWELVE MONTH PERIOD PRECEDING THE COMMENCEMENT OF ARBITRATION. JUDGMENT UPON ANY AWARD RENDERED PURSUANT TO SUCH ARBITRATION PROCEEDING MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THIS AGREEMENT TO ARBITRATE SHALL BE WITHOUT PREJUDICE TO THE RIGHT OF THE PARTIES TO SEEK PRELIMINARY INJUNCTIVE, INTERIM, PROVISIONAL OR ANY FORM OF EQUITABLE RELIEF IN ANY COURT OR ANY JUDICIAL AUTHORITY WHICH HAD JURISDICTION OVER THE PARTIES.
11.3. Assignment. Customer will not assign this Agreement or transfer, lease, export or grant a sublicense of the rights and licenses granted herein to any third party, without Metropolitan’s prior written consent. Notwithstanding the foregoing, Customer may assign this Agreement to any successor to all or substantially all of its business, except that Metropolitan’s consent will be required if such assignment results in a material increase in the scope of use of the Service. Subject to the foregoing, this Agreement shall inure to the benefit of, and shall be binding on, each Party’s respective successors and assigns. Except as otherwise provided, Metropolitan’s consent to an assignment of this Agreement by Customer is subject to Metropolitan’s credit review and approval of the proposed assignee.
11.4. Governing Law. This Agreement shall be governed by the laws of New York (excluding conflicts of law provisions).
11.5. Injunctive Relief. Customer acknowledges that the Metropolitan Service and other Confidential Information are highly valuable to Metropolitan, and that money damages would not be a sufficient remedy for any breach of Customer’s obligations herein with respect to confidentiality and misuse of Metropolitan’s proprietary materials and information. Metropolitan acknowledges that Customer’s Confidential Information and Customer Data is highly valuable to Customer, and that money damages would not be a sufficient remedy for any breach of Metropolitan’s obligations herein with respect to confidentiality and use of Customer Data. Therefore, in the event of any breach by a Party of its obligations with respect its obligations relating to the scope of its licenses or confidentiality, the non-breaching Party shall be entitled to seek specific injunctive relief as a remedy for such breach, in addition to all other available legal or equitable remedies, without the necessity of posting bond or other security.
11.6. Publicity. Neither party shall release any press release or other public statement regarding this Agreement without the prior consent of the other party, which consent shall not be unreasonably withheld. However, if so specified in Metropolitan’s then-current Privacy Policy on its website, Metropolitan is permitted to include Customer’s name on customer lists that may be provided to potential customers and other third parties.
11.7. Severability. In the event that any of the terms or provisions herein are determined by a court competent jurisdiction to be unenforceable or declared invalid for any reason whatsoever, such unenforceability or invalidity shall not affect the enforceability or validity of the remaining terms and provisions of this Agreement.
11.8. Entire Agreement; Amendment; Waiver. This Agreement and addenda attached hereto and which are incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof and that this Agreement supersedes all proposals, oral or written, all previous negotiations, and all other communications between the parties with respect to the subject matter hereof. Any terms and conditions of any purchase order or other instrument issued by Customer in connection with this Agreement which are in addition to or inconsistent with the terms and conditions of this Agreement shall not be binding on Metropolitan and shall not apply to this Agreement. Except as otherwise specifically set forth herein, this Agreement may be amended only by a written instrument signed by authorized representatives of both parties. The waiver by either party of any default, breach or obligation hereunder shall be ineffective unless in writing, and shall not constitute a waiver of any subsequent breach or default.
11.9. Notices. All notices or other communications required under to this Agreement shall be in writing and shall be deemed given if delivered personally or mailed by registered or certified mail, return receipt requested, or by commercial overnight delivery service with provisions for a receipt, or by confirmed facsimile or e-mail, to the address of the receiving party first set forth above or such other address a party may specify by written notice.
11.10. Force Majeure. Metropolitan shall be excused from delays or failure to perform Services to the extent such delays or failure result from acts of nature, strikes, fire, riots, war, acts of public enemies, fires, epidemics, labor disputes, or any other causes beyond its reasonable control (each a “Force Majeure” event). In the event of a delay in implementation and related services due to any Force Majeure event, the date or dates of performance of such services by Metropolitan shall be extended for a period equal to the time lost by reason of the delay. Any Party affected by an event of Force Majeure will promptly inform the other Party and will use commercially reasonable efforts to fulfill its obligations under this Agreement and to remove or avoid any disability and mitigate any damages caused by such event of Force Majeure at the earliest practicable time and to the greatest extent possible.
11.11. Independent Contractors. Nothing herein contained shall contemplate or constitute one Party as the other Party’s agent or employee, and nothing herein shall constitute a partnership, joint venture, or fiduciary relationship between the Parties. Further, it is not the intention of this Agreement or of the Parties to confer a third party beneficiary right of action upon any third party or entity whatsoever, and nothing in this Agreement will be construed so as to confer upon any third party or entity other than the Parties hereto a right of action under this Agreement or in any manner whatsoever.
11.12. Counterparts. This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement, it being understood that the Parties need not sign the same counterpart. Facsimile signatures or signatures received as a portable document format (PDF) attachment to electronic mail shall be treated as original signatures for all purposes hereunder.