TERMS OF SERVICE

1.1. Provision of the Services. Mezmo offers various online, software-as-a-service products and services (collectively, “Services”). The specific Services ordered by Customer shall be as set forth in on an “Order Form.” 

1.2. Access to the Services. Mezmo will make the Services available to Customer in accordance with this Agreement and the end user documentation made available to Customers via the Mezmo website (“Documentation”).  As part of the registration process, Customer will identify an administrative username and password for Customer’s Mezmo account. Customer shall require that its permitted users keep this log-in information confidential and shall be responsible for all actions taken using its account credentials. 

1.3. Support Services. Subject to the terms hereof, Mezmo will provide Customer with a reasonable level of technical support services, through available support channels, in accordance with Mezmo’s standard practices.

1.4. Professional Services. To the extent set forth in an Order Form or Statement of Work, Mezmo will provide Customer with professional services in support of the implementation and use of the Services (“Professional Services”). Such Professional Services will be provided in a professional manner in accordance with all applicable terms and conditions set forth in the relevant Order Form or Statement of Work.

2.1. “Customer Data” means electronic data and information submitted by or for Customer to the Services. Customer grants Mezmo and its licensors a non-exclusive, worldwide, royalty-free, paid-up, transferable right and license to use, process and display such Customer Data for the purpose of providing the Service. Customer is solely responsible for the content and accuracy of Customer Data. Customer acknowledges and agrees that Customer Data submitted to the “Pipeline” Service (as set forth in the Order Form and as defined further in the Documentation) is not stored or cached within the Service.

2.2. Mezmo will maintain administrative, physical, and technical safeguards at a level not materially less protective than as described on Mezmo’s Compliance/Security page (located here: https://www.mezmo.com/compliance-security). Those safeguards will include measures for preventing unauthorized access, use, modification, deletion, and disclosure of Customer Data by Mezmo’s personnel. Mezmo will process all Customer Data for the purposes set forth in this Agreement and in accordance with: (a) the DPA (located here: https://www.mezmo.com/dpa) and “Security Protocols” set forth in Annex II thereto; and (b) the BAA (located here: https://www.mezmo.com/baa).

2.3. Mezmo uses certain subprocessors to provide infrastructure services and to assist Mezmo in providing the Services. A list of current subprocessors utilized by Mezmo can be found at https://Mezmo.com/sub-processor/.  Mezmo will ensure that all such Subprocessors maintain, at a minimum, reasonable data practices for maintaining the confidentiality and security of Customer Data and preventing unauthorized access.  

2.4. Customer (and not Mezmo) bears sole responsibility for security, protection and backup of Customer Data when in Customer’s or its representatives’ or agents’ possession or control.

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3.1. This is a contract for Services and any software that is provided (regardless of the premises location) will be installed, accessed and maintained only by or for Mezmo and no license is granted thereto. Customer will not, directly or indirectly: (a) rent, lease, copy, provide access to or sublicense the Services (or any part thereof) to any third party; (b) 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, documentation or data related to the Services (“Software”); (c) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Mezmo or authorized within the Services); or (d) remove any proprietary notices or labels.

3.2. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with applicable laws and regulations and any standard Mezmo published policies. Although Mezmo has no obligation to monitor Customer’s use of the Services, Mezmo may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

3.3. 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, server, software, operating system, networking, web servers, long distance and local telephone service (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.

3.4. Customer shall be responsible for the configuration of its account, including configuration of archival storage options and any fees or costs which may be incurred due to inaccuracies within such Customer configuration.

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4.1. By Customer. Customer hereby agrees to indemnify and hold harmless Mezmo, its officers, directors, employees and agents, from and 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 by Customer of any of the Customer representations and warranties set forth in Section 3 above. 

4.2. By Mezmo. Mezmo will indemnify and hold harmless Customer, its officers, directors, employees and agents, from and against any claim of infringement of a U.S. patent, copyright, or trademark asserted against Customer by a third party based on Customer’s use of the Services in accordance with the terms of this Agreement.

4.3. Procedure.  The party seeking indemnification hereunder shall provide prompt written notice (in any event notice in sufficient time to allow the indemnifying party to respond without prejudice), cooperation and assistance to the indemnifying party relative to any such claim, action, or suit and the indemnifying party shall have the exclusive right to undertake and conduct the defense of such claim or suit (including, without limitation, selecting in its sole discretion, counsel therefore) and to engage in settlement thereof, subject to the indemnified party’s prior approval of any such settlement, not to be unreasonably withheld, provided that no such consent will be required if such settlement contains (a) a complete release of all covered claims; (b) no admission of liability or wrongdoing by the indemnified party; and (c) no financial obligations upon the indemnified party. 

If Customer’s use of the Services is, or in Mezmo’s reasonable opinion is likely to be, enjoined due to an intellectual property infringement claim, Mezmo may, in its sole discretion and at its sole cost: (i) substitute substantially functionally similar services; (ii) procure for Customer the right to continue using the Services; or if in Mezmo’s sole and reasonable judgment (i) and (ii) are commercially impracticable, then (iii) terminate the Agreement and promptly refund to Customer any prepaid but unused fees. Company’s indemnification obligation set forth in Section 4.2 shall not apply: (A) if any of the Services are modified by any party other than Mezmo, but solely to the extent the alleged infringement is caused by such modification; (B) if the Services are combined with any non-Mezmo products or services not authorized by Mezmo, but solely to the extent the alleged infringement is caused by such combination; or (C) to any unauthorized use of the Services by Customer’s authorized users.

Each party (“Receiving Party”) understands that the other party (“Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Mezmo includes non-public information regarding features, functionality and performance of the Service. Confidential Information of Customer includes the Customer Data. The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information, and (b) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential 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 (i) is or becomes generally available to the public, or (ii) was in its possession or known by it prior to receipt from the Disclosing Party, or (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party or (v) is required to be disclosed by law (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).

6.1. Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services.

6.2. Customer acknowledges that no intellectual property rights are assigned or transferred to Customer hereunder. Customer is obtaining only a limited right to use the Services and Software. Mezmo shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, and (b) any software, applications, inventions or other technology it develops in connection with its performance of the Services hereunder. In the event Customer provides Mezmo with any suggestions, ideas, improvements or other feedback with respect to the Services or Software (“Feedback”), Customer shall and hereby does grant to Mezmo (and its successors and assigns) a non-exclusive, perpetual, irrevocable, sublicensable, transferable, royalty-free, fully paid-up, worldwide right and license to copy, reproduce, modify, create derivatives of, display, perform, sell, offer for sale, distribute and otherwise exploit such Feedback for any purpose. 

6.3. Notwithstanding anything to the contrary, Mezmo shall have the right to collect and analyze data relating to the provision, use and performance of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Mezmo will be free to (i) use such information and data to maintain, support and improve the Services, and (ii) disclose such data solely in aggregate and de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

7.1. Customer will be invoiced for Services based on the applicable payment model as set forth in the Order Form. If Customer pays on an advanced subscription basis for a committed level of Services, then Customer will be billed for any excess above such committed amount, if any, on a monthly basis in arrears.  Unused amounts or credits are forfeited.  Usage limitations for certain Services may apply as set forth on the Order Form. Mezmo reserves the right to adjust the fees charged to Customer upon notice (electronic notice to suffice) delivered to Customer at least thirty (30) days prior to the end of the then-current subscription term, with such fee change to take place at the beginning of the next subscription term.  

7.2. All invoices are due and payable no later than thirty (30) days following receipt of invoice, unless otherwise set forth on the Order Form. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.  If Customer’s account is fifteen (15) days or more overdue, then in addition to any of its other rights or remedies, Mezmo reserves the right, upon notice, to suspend Customer’s access to the Services without liability to Customer until all overdue amounts are paid in full. Mezmo shall have the right to terminate Customer’s use of the Services in the event that late payment occurs for two (2) successive months or for any three (3) non-consecutive months during any twelve (12) month period. 

7.3. Fees are stated exclusive of any taxes, levies, duties or similar government assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all taxes associated with Services other than taxes based on Mezmo’s net income. Should any payment for Services be subject to withholding tax by any government, Customer will reimburse Mezmo for such withholding tax.

8.1. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration, unless either party requests termination at least thirty (30) days prior to the end of the then-current subscription term.

8.2. In addition to any other remedies it may have, either party may terminate this Agreement upon notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days following notice of such breach. Mezmo may terminate this Agreement immediately on notice to Customer if Mezmo reasonably believes that the Services are being used by Customer in violation of applicable law. 

8.3. Upon termination for cause by Mezmo, Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon termination for cause by Customer, Mezmo will promptly refund to Customer any prepaid but unused fees, calculated on a pro rata basis as of the effective date of termination. 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.

9.1. Customer represents and warrants that it: (a) has validly entered into this Agreement and has the legal power to do so; (b) it has all rights necessary to: (i) provide Customer Data to Mezmo via the Service; and (ii) grant the license and rights in and to Customer Data to Mezmo as specified in this Agreement; and (c) it is responsible for the conduct of its authorized users and their compliance with the terms of this Agreement. 

9.2. Mezmo shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Professional Services, if any, in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Mezmo or by third-party providers, or because of other causes beyond Mezmo’s reasonable control, but Mezmo shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. The Mezmo warranties set forth in this Section 9 shall not apply to any Services provided by Mezmo for free or on an unpaid trial or evaluation basis.

9.3. MEZMO 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 AND PROFESSIONAL SERVICES. INCLUDING ANY SERVICES THAT ARE OFFERED FOR FREE OR ON AN UNPAID TRIAL OR EVALUATION BASIS, ARE PROVIDED “AS IS” AND MEZMO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

10.1. NEITHER PARTY, NOR ANY OF ITS AFFILIATES, OFFICERS, EMPLOYEES, REPRESENTATIVES, OR CONTRACTORS (INCLUDING, IN THE CASE OF MEZMO, ITS EQUIPMENT AND TECHNOLOGY SUPPLIERS) WILL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS OR LOSS OF BUSINESS), EVEN IF SUCH DAMAGES ARE REASONABLY FORESEEABLE. 

10.2. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF MEZMO (INCLUDING ITS AFFILIATES) UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO MEZMO FOR USE OF THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRIOR TO THE CLAIM GIVING RISE TO SUCH LIABILITY.

10.3. THE FOREGOING LIMITATIONS ON LIABILITY WILL NOT APPLY TO THE EXTENT ANY SUCH LIMITATION IS PROHIBITED BY ANY LAWS.

Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

12.1. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. 

12.2. Assignment. This Agreement is not assignable, transferable or sublicensable by Customer except with Mezmo’s prior written consent. Mezmo may transfer and assign any of its rights and obligations under this Agreement without consent. 

12.3. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.

12.4. Amendments; Waivers. All amendments, waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. 

12.5. Relationship of the Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Mezmo in any respect whatsoever. 

12.6. Notices. All notices under this Agreement will be in writing to the parties at: (a) if to Customer, the address listed by Customer on the Order Form or during the Mezmo registration process (or as otherwise later changed by Customer in its Mezmo account); and (b) if to Mezmo, 2059 Camden Ave #297, San Jose, CA 95124, Attn: Legal (or such other address as may be provided by Mezmo at any time); and (c) will be deemed to have been received: (i) immediately upon receipt if personally delivered; (ii) the day after being sent if delivered via e-mail; (ii) the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and (iv) upon receipt, if sent by certified or registered mail, return receipt requested. 

12.7. Governing Law. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions and without regard to the United nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.

12.8. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to an event or series of events which are beyond the reasonable control of such party, such as a civil disturbances, blockade, war, act of terrorism, acts of god, power outages, or governmental restrictions.

12.9. Independent Contractors. The parties to this Agreement are independent contractors.  Nothing in this Agreement shall be deemed to create a partnership, joint venture, employment, franchise, or agency between the parties, and neither party may do or permit any act to be done whereby a party may be represented as agent or partner of the other.  Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

12.10. Use of Customer Name and Logo. Mezmo may use Customer’s name and corporate logo in online and print literature, marketing and promotional materials without Customer’s prior written consent.