MISSN OR ITS AFFILIATES (“MISSN”) IS WILLING TO GRANT ACCESS TO THE SAAS PRODUCTS TO YOU (REFERENCED BELOW AS “CUSTOMER”) TO THE MISSN APPLICATION (AVAILABLE AT www.missn.com) (THE “SAAS PRODUCTS”) ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT (AS DEFINED BELOW). CUSTOMER AND MISSN MAY EACH ALSO BE REFERRED TO AS A “PARTY” AND TOGETHER, THE “PARTIES”.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SAAS PRODUCTS. THIS SAAS TERMS OF SERVICE (“AGREEMENT”) CONSTITUTES A LEGAL AND ENFORCEABLE CONTRACT BETWEEN CUSTOMER AND MISSN. BY INDICATING CONSENT ELECTRONICALLY, OR ACCESSING OR OTHERWISE USING THE SAAS PRODUCTS, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, DO NOT INDICATE CONSENT ELECTRONICALLY AND MAKE NO FURTHER USE OF THE SAAS PRODUCTS.
1.1. Access and Use. Subject to payment of all any applicable fees, Missn grants Customer, during the Subscription Term, a non-exclusive, non-transferable right to access and use (and permit Authorized Users to access and use) the SaaS Products. Missn may update the SaaS Products from time-to-time in its sole discretion.
1.2. Access and Use Restrictions. Customer shall not (directly or indirectly): (a) copy or reproduce the SaaS Products or the Documentation except as permitted under this Agreement; (b) exceed the subscribed quantities, users or other entitlement measures of the SaaS Products as set forth in the applicable Order; (c) remove or destroy any copyright, trademark or other proprietary marking or legends placed on or contained in the SaaS Products, Documentation or Missn Intellectual Property; (d) assign, sell, resell, sublicense, rent, lease, time-share, distribute or otherwise transfer the rights granted to Customer under this Agreement to any third party except as expressly set forth herein; (e) modify, reverse engineer or disassemble the SaaS Products; (f) except to the limited extent applicable laws specifically prohibit such restriction, decompile, attempt to derive the source code or underlying ideas or algorithms of any part of the SaaS Products, attempt to recreate the SaaS Products or use the SaaS Products for any competitive or benchmark purposes; (g) create, translate or otherwise prepare derivative works based upon the SaaS Products, Documentation or Missn Intellectual Property; (h) interfere with or disrupt the integrity or performance of the SaaS Products; (i) attempt to gain unauthorized access to the SaaS Products or its related systems or networks, or perform unauthorized penetrating testing on the SaaS Products; (j) use the SaaS Products in a manner that infringes on the Intellectual Property rights, publicity rights, or privacy rights of any third party, or to store or transfer defamatory, trade libelous or otherwise unlawful data; or (k) except as otherwise agreed by the Parties in the applicable BAA, store in or process with the SaaS Products any personal health data, credit card data, personal financial data or other such sensitive regulated data not required by the Documentation, or any Customer Data that is subject to the International Traffic in Arms Regulations maintained by the United States Department of State. Fees for the SaaS Products are based on use of the SaaS Products in a manner consistent with the Documentation. If Customer uses the SaaS products in a manner that is outside or in violation of the Documentation, then Customer will cooperate with Missn to address any applicable burden on the SaaS Products or pay an additional mutually agreed upon fee.
1.3. Login Access to the SaaS Products. Customer is solely responsible for ensuring: (i) that only appropriate Authorized Users have access to the SaaS Products, (ii) that such Authorized Users have been trained in proper use of the SaaS Products, and (iii) proper usage of passwords, tokens and access procedures with respect to logging into the SaaS Products. Missn reserves the right to refuse registration of, or to cancel, login IDs that it reasonably believes to violate the terms and conditions set forth in this Agreement, in which case Missn will promptly inform Customer in writing of such refusal or cancellation. In addition to the rights set forth in this Agreement, Missn may suspend Customer's access and use of the SaaS Products if there is an unusual and material spike or increase in Customer’s use of the SaaS Products and Missn reasonably suspects or knows that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the SaaS Products. Missn will provide notice prior to such suspension if permitted by applicable law or unless Missn reasonably believes that providing such notice poses a risk to the security of the SaaS Products. Missn will promptly reinstate Customer’s access and use once the issue has been resolved.
1.4. Trial Services. If Customer is using a free trial, a proof of concept version of the SaaS Products, a beta version of the SaaS Products, or using the SaaS Products on any other free-of-charge basis as specified in an Order including any related support services to the extent provided by Missn in its sole discretion (collectively, "Trial Services"), Missn makes such Trial Services available to Customer until the earlier of: (i) the end of the free trial or proof of concept period or beta testing period as communicated by Missn or specified in an Order; (ii) the start date of any purchased version of such SaaS Products; or (iii) written notice of termination from Missn (“Trial Services Period"). Missn grants Customer, during the Trial Services Period, a non-exclusive, non- transferable right to access and use the Trial Services for Customer’s internal evaluation purposes in accordance with the Documentation and subject to the access and use restrictions set forth in this Agreement. Customer is authorized to use Trial Services only for evaluation and not for any business or productive purposes, unless otherwise authorized by Missn in writing. Any data Customer enters into the Trial Services and any configurations made to the Trial Services by or for Customer during the term of such Trial Services will be permanently lost unless Customer: (a) has purchased a subscription to the same SaaS Products as covered by the Trial Services; or (b) exports such data or configurations before the end of such free period. There is no guarantee that features or functions of the Trial Services will be available, or if available will be the same, in the general release version of the SaaS Products, and Customer should review the SaaS Products features and functions before making a purchase. Missn will be under no obligation to provide Customer any support services with respect to the Trial Services. Notwithstanding anything to the contrary, Missn provides the Trial Services “as is” and “as available” without any warranties or representations of any kind. To the extent permitted by law, Missn disclaims all implied warranties and representations, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose and non-infringement. Customer assumes all risks and all costs associated with its use of the Trial Services. Customer's sole and exclusive remedy in case of any dissatisfaction or Missn's breach of the Agreement with respect to such Trial Services is termination of the Trial Services. Any obligations on behalf of Missn to indemnify, defend, or hold harmless under this Agreement are not applicable to Customers using Trial Services.
2.1. Intellectual Property. Except for the rights granted in this Agreement, all rights, title, and interest in and to the SaaS Products, Documentation, and Missn Intellectual Property are hereby reserved by Missn, its Affiliates or licensors. Except as provided for herein, all rights, title, and interest in and to Customer Intellectual Property are hereby reserved by Customer, its Affiliates or licensors. Nothing in this Agreement shall transfer ownership of any Intellectual Property rights from one Party to the other.
2.2. Customer Data. Customer owns all right, title and interest in all Customer Data. Nothing in this Agreement shall be construed to grant Missn any rights in Customer Data beyond those expressly provided herein. Customer grants Missn and its Affiliates the limited, non-exclusive, worldwide license to view and use the Customer Data solely for the purpose of providing the SaaS Products.
2.3. Usage Data and Suggestions. Missn shall be permitted to collect and use the Usage Data for its reasonable business purposes and for Customer’s benefit. In the event Missn wishes to disclose the Usage Data or any part thereof to third parties (either during the Subscription Term or thereafter), such data shall be deidentified and/or presented in the aggregate so that it will not identify Customer or its Authorized Users. The foregoing shall not limit in any way Missn’s confidentiality obligations pursuant to section 4 below. To the extent that Customer provides Missn with Suggestions, such Suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon Missn pursuant to this Agreement, and may be implemented by Missn in its sole discretion. Customer acknowledges that any Missn products or materials incorporating any such Suggestions shall be the sole and exclusive property of Missn.
3.1. Confidential Information. The Parties acknowledge that each may disclose certain valuable confidential and proprietary information to the other Party. The receiving Party may only use the disclosing Party’s Confidential Information to fulfill the purposes of this Agreement and in accordance with the terms of this Agreement. The receiving Party will protect the disclosing Party’s Confidential Information by using at least the same degree of care as the receiving Party uses to protect its own Confidential Information of a like nature (but no less than a reasonable degree of care) to prevent the unauthorized use, dissemination, disclosure or publication of such Confidential Information. Notwithstanding the foregoing, the receiving Party may disclose Confidential Information to its (and its Affiliates) employees, advisors, consultants, and agents on a need-to-know basis and provided that such party is bound by obligations of confidentiality substantially similar to those contained herein. This section 4 supersedes any and all prior or contemporaneous understandings and agreements, whether written or oral, between the Parties with respect to Confidential Information and is a complete and exclusive statement thereof. Additionally, the obligations set forth in section 5.4 and not this section 4 herein apply to Customer Data.
3.2. Exceptions. Information will not be deemed Confidential Information if it: (i) is known to the receiving Party prior to receipt from the disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (ii) becomes known (independently of disclosure by the disclosing Party) to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving Party; or (iv) is independently developed by the receiving Party without use of or reliance upon the disclosing Party’s Confidential Information, and the receiving Party can provide evidence to that effect. The receiving Party may disclose Confidential Information pursuant to the requirements of a court, governmental agency or by operation of law but shall (to the extent permissible by law) limit such disclosure to only the information requested and give the disclosing Party prior written notice sufficient to permit the disclosing Party to contest such disclosure.
4.1. Customer Data Content. As between Missn and Customer, Customer is solely responsible for: (i) the content, quality and accuracy of Customer Data as made available by Customer and by Authorized Users; (ii) providing notice to Authorized Users with regards to how Customer Data will be collected and used for the purpose of the SaaS Products; (iii) ensuring Customer has a valid legal basis for processing Customer Data and for sharing Customer Data with Missn (to the extent applicable); and (iv) ensuring that the Customer Data as made available by Customer complies with applicable laws and regulations including Applicable Data Protection Laws. For further information, see Missn’s Privacy Policy.
4.2. Security of Customer Data. Missn shall: (i) ensure that is has in place appropriate administrative, physical and technical measures designed to protect the security and confidentiality of Customer Data against any accidental or illicit destruction, alteration or unauthorized access or disclosure to third parties; and (ii) access and use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement, and as otherwise expressly permitted in this Agreement. Missn shall not materially diminish its security controls with respect to Customer Data during a particular SaaS Products term. The obligations set forth in this Section 5.4 are in addition to any confidentiality, privacy, security or other requirements contained in the BAA or DPA, as applicable.
5.1. Compliance with Law. Each Party shall comply with all applicable, laws and regulations in connection with the performance of its obligations and the exercise of its rights under this Agreement.
5.2. Disclaimer. Any and all warranties, expressed, incorporated or implied, are limited to the extent and period mentioned in this Agreement. To the maximum extent allowed by applicable law, Missn disclaims (and disclaims on behalf of its licensors and/or contributors to any Third-Party Materials) all other warranties, conditions and other terms, whether express or implied or incorporated into this Agreement by statute, common law or otherwise, including the implied conditions and warranties of merchantability and fitness for a particular purpose. Missn will have no liability for delays, failures or losses attributable or related in any way to the use or implementation of third- party software or services not provided by Missn.
6.1. Customer Data and Use Indemnity. Customer shall defend and indemnify Missn and/or its Affiliates and their officers, directors and employees against any third-party claims, suits and proceedings (including those brought by a government entity), and all directly related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) resulting from: (i) an alleged infringement or violation by the Customer Data of such third-party’s patent, copyright, trademark, trade secret; or (ii) Missn’s use of the Customer Data violating applicable law, provided that such use is in accordance with the terms of this Agreement and (where applicable) with the terms of the DPA and/ or the BAA.
6.2. Process. Each Party’s defense and indemnification obligations herein will become effective upon, and are subject to: (a) the indemnified Party’s prompt notification to the indemnifying Party of any claims in writing; and (b) the indemnified Party providing the indemnifying Party with full and complete control, authority and information for the defense of the claim, provided that the indemnifying Party will have no authority to enter into any settlement or admission of the indemnified Party’s wrongdoing on behalf of the indemnified Party without the indemnified Party’s prior written consent (not to be unreasonably withheld). At the indemnifying Party’s request, the indemnified Party shall reasonably cooperate with the indemnifying Party in defending or settling any claim.
7.1. No Consequential Damages. Neither Party will have any liability to the other Party for any loss of profits or revenues, loss of goodwill, or for any indirect, special, incidental, consequential or punitive damages arising out of, or in connection with this Agreement, however caused, whether in contract, tort (including negligence), warranty,
7.2. Construction. This Agreement is not intended to and will not be construed as excluding or limiting any liability which cannot be limited or excluded by applicable law, including liability for (a) death or bodily injury caused by a Party’s negligence; or (b) gross negligence, willful misconduct, or fraud.
8. Assignment. Neither Party may assign any of its rights or obligations under this Agreement without the other Party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign any and all of its rights and obligations under this Agreement to a successor in interest in the event of a merger or acquisition or to an Affiliate, upon written notice to the other Party.
9.1. Term. This Agreement will be effective upon Customer’s first access of a SaaS Product and shall remain in force during the applicable Subscription Term of the SaaS Product or throughout Customer’s continued use of the SaaS Product, as applicable.
10.1. Independent Contractors. Nothing in this Agreement will be construed to imply a joint venture, partnership or principal-agent relationship between Missn and Customer, and neither Party will have the right, power or authority to obligate or bind the other in any manner whatsoever.
10.2. Notices. All Notices will be in writing and will be deemed to have been duly given: (a) when delivered by hand; (b) three (3) days after being sent by registered or certified mail, return receipt requested and postage prepaid; (c) one (1) day after deposit with a nationally recognized overnight delivery or express courier service; or (d) when provided via email when the sender has received a delivery/read receipt. Notices for Missn should be sent to the following addresses: (i) for physical Notices the address specified for Missn in section 13.4 “Governing Law and Jurisdiction” and; (ii) for electronic Notices to: contract-notices@missn.com. In the event that Customer has any technical support-related queries, the contact information for support can be found at: https://www.missn.com/customer-support/.
10.3. Force Majeure. With the exception of Customer’s payment obligations herein, neither Party will be liable to the other Party for any delay or failure to perform which is due to fire, pandemic, virus, epidemic, travel advisories as to health, security and/or terrorism, flood, lockout, transportation delay, war, acts of God, governmental rule or order, strikes or other labor difficulties, or other causes beyond its reasonable control. However, in such event, both Parties will resume performance promptly after the cause of such delay or failure has been removed.
10.4. Governing Law and Jurisdiction. Each Party agrees that these terms are governed by the law of the State of California without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of California courts.
10.5. Entire Agreement, Execution, and Modification. This Agreement supersedes all prior agreements and representations between the Parties regarding the subject matter of this Agreement. The terms and conditions contained in any Order issued by Customer will be of no force or effect, even if the Order is accepted by Missn. Missn may make changes to these Terms of Service from time to time. If Missn makes a material change to any of the foregoing, Missn will inform Customer by e-mail to the e-mail address(es) noted on the Order (or subsequently designated by Customer in writing as a contact for notifications from Missn), or through a banner or other prominent notice within the SaaS Products, or through the Missn support platform. If Customer does not agree to the change, Customer must so notify Missn by e-mail to contract-notices@missn.com within thirty (30) days after Missn’s notice. If Customer so notifies Missn, then Customer will remain governed by the most recent terms of service applicable to Customer until the end of the then-current year of the Subscription Term and the updated terms shall apply upon the commencement of the subsequent Subscription Term.