1. Scope. The parties expressly agree that no term or provision contained in the Agreement will have any force or effect that: (a) allows Vendor the ability to audit Customer; (b) limits Customer’s ability to compete or independently develop or offer any product or service that is the same as or similar to any product or service of Vendor; (c) prohibits Customer from soliciting or hiring any Vendor personnel; (d) holds Customer to any exclusivity obligations whatsoever; (e) assigns or grants any rights or licenses of Customer’s intellectual property rights, user data or confidential information (which includes any information Customer inputs into the Services, any output derived therefrom, and any other data provided by Customer to Vendor in the course of providing the Services) (“Customer Data”) to Vendor except strictly as needed to provide the Services; (f) provides Vendor with any right of publicity regarding the relationship with Customer or permits Vendor to use Customer’s name or logo publicly; or (g) binds any Customer affiliate in a way that conflicts with these MG Terms. Any conflicts shall be resolved in the following order: the DPA (defined below),  these MG Terms, followed by the Order and the Master Agreement.

 

2. Payment Terms. Customer will pay all undisputed invoices within 30 days of receipt. No late payment penalties will apply, and Vendor will not suspend any services due to late payment without providing Customer written notice and at least 15 days to cure, prior to such suspension. Vendor is responsible for all federal, state, provincial and local taxes, if any, and all other costs and expenses associated with fulfilling its obligations hereunder.

 

3. Term and Termination. The Agreement will not auto-renew past the initial term. For any indefinite term, or term beyond one year, Customer may terminate this Agreement by giving Vendor sixty (60) days’ advance written notice, and Vendor will provide a pro rata refund of any prepaid fees, if any, other than for Services provided and accepted by Customer prior to the effective date of termination.

 

4. REPRESENTATIONS AND WARRANTIES: Vendor represents, warrants and covenants that it, the Services and all personnel (including its subcontractors): (a) have all rights, licenses, permits and authority to perform under this Agreement; (b) will not infringe, misappropriate, or otherwise violate any third party intellectual property right (“IPR”), proprietary rights, contract rights, trade secrets or any other third party right; and (c) will comply with all applicable laws, rules and regulations,including all applicable state, national and international laws, rules, regulations and industry standards relating to environmental protection, sustainability and corporate transparency. In addition, Vendor represents, warrants and covenants that it, and each of its subsidiaries and affiliates and their respective agents personnel and subcontractors, (x) have not received or been offered, nor will offer, any illegal or improper bribe, kickback, payment, gift, or thing of value from or to any employees or agents of Customer in connection with the Agreement; (y) and: (i) use and will continue to use commercially reasonable efforts to ensure that there is no slavery, human trafficking, and/or child or forced labor in any part of their respective businesses or supply chain; (ii) have not been convicted of any offense involving slavery, human trafficking, and/or child or forced labor; and (iii) are not currently and have not been the subject of any investigation, inquiry, or enforcement proceedings in relation to an alleged offense in connection with slavery, human trafficking, and/or child or forced labor; and (z) will not use Customer Data to train or otherwise improve the Services for the benefit of any third party. Vendor is responsible and fully liable for all acts and omissions of its subcontractors to the same extent as Vendor.

 

5. Indemnity; Limitation of Liability:

 

5.1. Indemnity. Vendor shall indemnify, defend and hold harmless Customer and its affiliates, and its and their respective directors, officers, employees, subcontractors. successors and assigns from and against any and all damages, injuries, liabilities, costs and expenses (including reasonable attorneys’ fees) (“Costs”) arising from third-party claims, lawsuits or proceedings (“Claims”) arising from or related to Vendor’s actual or alleged: (a) breach of this Agreement, (b) gross negligence, willful misconduct or fraud, or (c) infringement or misappropriation of any third party IPR. Vendor will give Customer prompt written notice of any Claim and Customer will cooperate in the defense or settlement of any Claim. Customer may participate in the defense of any Claim at its expense and through counsel of its own choosing. Vendor will not agree to settlement of any Claim without Customer’s prior written consent (not to be unreasonably withheld), except where the settlement admits no fault or liability of Customer, imposes no obligations or costs on Customer and includes a full and unconditional release of Customer from all liability.

 

5.2. Limitation of Liability. To the extent permitted by law, and except for obligations arising under this section 5, any breach of sections 4 and 6, or Claims arising from a party’s gross negligence, willful misconduct or intentional breach (“Exclusions”), neither party, nor its affiliate entities, directors, officers, or personnel, will be liable for indirect, incidental or consequential damages arising out of this Agreement. Except for breach of Section 6, or Customer’s gross negligence, or willful misconduct, Customer’s maximum aggregate liability shall not exceed the total fees paid or payable to Vendor in the twelve (12) month period preceding the events giving rise to the Claim. Nothing in the Master Agreement will limit Vendor’s liability with respect to the Exclusions.

 

6. Confidentiality; Security. 

 

6.1. Confidentiality. Where the parties have entered into a nondisclosure agreement (an “NDA”), such NDA applies to all confidential information provided under the Agreement without regard to any earlier termination of the NDA, and the NDA will govern and supersede any conflicting terms in the Agreement, however, any conflicting general terms (e.g. governing law and venue) will not apply to the extent they conflict with these MG Terms. 

 

6.2. Security. If Vendor has access to Customer Data, Vendor shall implement appropriate physical, technical and organizational measures to protect such Customer Data against accidental or unauthorized loss, theft, alteration, damage, disclosure, access or other processing, in particular where the processing involves the transmission of Customer Data over a network, and against all forms of unlawful processing. Such measures shall ensure a level of security appropriate to the risk, including inter alia as appropriate: (a) the encryption of Customer Data; (b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; (c)  the ability to restore the availability and access to Customer Data in a timely manner in the event of a physical or technical incident; (d) the protection against viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs, including code that is intended to or has the effect of misappropriating, commandeering, or disrupting access to or use or operation of any information, device, or system; and (e) a process for regularly testing, assessing and evaluating the effectiveness of technical, physical and organizational measures for ensuring the security of the processing. Vendor shall comply with any additional data security documentation that Customer may provide, from time to time.

 

6.3. Data Protection. The terms and conditions set forth in the MG Data Processing Addendum (the “DPA”) are incorporated herein by reference whenever the Vendor processes Customer Data (as defined in the DPA).

7.  INSURANCE: Vendor will maintain for the term of this Agreement, insurance in amounts sufficient to cover its obligations and liabilities under this Agreement, but in no event less than the following: (a)  Commercial General Liability insurance, including contractual liability, premises liability, and products and completed operations liability in amounts of no less than $1,000,000 per occurrence and $2,000,000 annual aggregate for bodily injury (including death), property damage, and personal and advertising injury, and (b) Errors & Omissions (Professional Liability, including Cyber Liability) insurance of not less than $1,000,000 per occurrence and $3,000,000 in the annual aggregate.

 

8. MISCELLANEOUS: All notices hereunder will be sent to the addresses set forth in the Order. This Agreement: (a) represents the entire understanding between the parties with respect to the subject matter; (b) may not be modified, nor any provision or term waived, except by a written instrument signed by both parties; (c) is governed by the laws of the State of Texas, United States, without regard to its conflict of laws principles, and the parties hereby irrevocably submit to jurisdiction and venue of the courts in Dallas County. Sections 5, 6.1, and 8, shall survive any termination or expiration of this Agreement.