Legal Terms and Conditions

These Term and Conditions (this “Agreement”) is by and between the Mitratech entity listed on the Order Form (‘Mitratech’) and the customer listed on the Order Form (‘Customer’ or ‘Client’) and is effective as of the start date listed on the Order Form (‘Effective Date’).  

1. 1. Definitions:
      1. 1. “Affiliate” means an entity controlling, controlled by or under common control with a party to the Agreement, where control means the ownership or control, directly or indirectly, of more than fifty percent (50%) of all the voting power of the shares (or other securities or rights) entitled to vote for the election of directors or other governing authority.     
         2. “Confidential Information”: see section 7.  
         3. “Customer Data”: any data and information that Customer provides, generates, transfers or makes available to Mitratech under the Agreement, whether printed, electronic, or in some other format.
         4. “Documentation”: the installation guide, release notes, and online help files in the form generally made available by Mitratech regarding the use of the applicable Software or Service. 
         5. “Fee(s)” or “Subscription Fee(s)”: any amounts owed by Customer as stated on an applicable Order Form
         6. “Force Majeure Events”: acts of God, strikes, lockouts, riots, acts of war or government, terrorism, Internet failure, earthquake, fire, or explosions.  
         7. “Mitratech Entity”. The subsidiary of Mitratech for which Customer is agreeing to the purchase the Services from as stated on the applicable Order Form. All references to Mitratech in this Agreement shall mean the specific entity as stated on the Order Form.  
         8. “Order Form”. the document(s), regardless of its actual name, mutually-agreed to by the parties which incorporates by reference the term of this Agreement, and describes Customer’s order-specific information, such as the particular Software Services ordered, license scope, user types, and fees.
         9.  “Services”: those subscription services that are indicated on an Order Form.
         10. “Unused Prepaid Fees”: the portion of fees that Customer has paid but that correspond to a period of performance that has not yet occurred. For example, if Customer pays a fee covering a 12-month period and Customer is entitled to receive a refund of Unused Prepaid Fees at the start of the ninth month of that period, then Customer would receive a refund corresponding to the three-month period that has not yet passed (i.e., one-fourth of the fees for the 12-month period).
   2. Services Access and Use. Subject to the restrictions set forth in any Order Form and timely payment of the applicable fees, Mitratech provides Customer a subscription to access and use the Services listed in the Order Form for the Initial Term and any Renewal Term. Customer’s use and access of the Services is solely for Customer’s own business operations. Customer may use the Documentation in connection with such use of the Services. A user’s password may not be shared with other individuals. Customer is and will be responsible for its users’ compliance with this Agreement.
   3. Affiliate Adoption. The parties agree that, if an Affiliate of a party executes an Order Form referencing this Agreement (an “Affiliate Order”), then the terms of this Agreement will be incorporated by reference in any such Affiliate Order as if this Agreement were separately executed by such Affiliate (and solely by such Affiliate), provided, however, that (i) each Affiliate Order may contain such additional supplementary provisions or amendments to this Agreement as the Affiliate and the other party (or its Affiliate) may agree upon and (ii) if there is conflict between the terms of an Affiliate Order and the terms of this Agreement, the terms of the Affiliate Order shall control.
   4. Term. The initial term of the Services (“Initial Term”) shall be as set forth in the Order Form and shall be automatically renewed for successive one year periods, (each a “Renewal Term”) commencing on the anniversary of the Initial Term; unless either Party notifies the other in writing, on or before forty five (45) days prior to the end of the then existing term, of its intention not to renew the Services. The Initial Term and Renewal Term(s) are collectively referred to as the “Term.”.
   5. Subscription Fees & Payments. 
      1. Fees. Customer will pay all fees due according to the Order Form. Unless otherwise provided in the Order Form, all fees shall be paid within thirty (30) days of the invoice date, and the invoice for the first installment of the Fees due will be submitted shortly after the execution of an Order Form.  If Customer fails to make payments of any fees due under the Agreement when those fees are due, then Customer shall be in material breach of this Agreement.
      2. Suspension of Services. Mitratech reserves the right to suspend any or all of the Services upon thirty (30) days written notice to Customer, if Customer has not paid Mitratech fees owed by the payment due date; the suspension will last until the delinquent payment is made. If the delinquent payment is not cured within 30 days after the start of the suspension, then Mitratech shall have the right to terminate this Agreement. Mitratech will not exercise its rights under this Section if Customer disputes the fees in good faith, is cooperating diligently to resolve the dispute, and has paid any undisputed fees that are due.
      3. Late Fees. Until paid in full, all amounts that are not subject to good faith dispute that are not paid in accordance with the payment terms as stated on the Order Form may, at Mitratech’s discretion, bear an interest charge of 1.5% per month or the maximum amount permitted under applicable law, whichever is lower. (the “Late Payment Fee”). With respect to amounts that were subject to good faith dispute, Customer will promptly pay such amounts to the extent required by and at the time of the dispute resolution, together with the applicable Late Payment Fee, if any.
      4. Fee Increases.  Annually during the Initial Term, Mitratech may modify the Subscription Fees upon providing Customer notice in advance of the price modification taking effect. The annual price increase for the Initial Term is outlined on the Order Form.
   6. Termination. Either party may terminate the Agreement, in whole or in part, immediately upon written notice: (i) if the other party commits a non-remediable material breach of the Agreement, or if the other party fails to cure any remediable material breach or provide a mutually-acceptable written remedial plan within 30 days of being notified in writing of such breach, or (ii) upon the other party’s institution of bankruptcy, receivership, insolvency, reorganization, or similar proceedings by or against either party (if such proceedings have not been dismissed or discharged within thirty (30) calendar days after they are instituted); upon the insolvency or making of an assignment for the benefit of creditors; upon the admittance by either party of any involuntary debts as they mature; or upon the institution of a readjustment of debt plan.
      1. Actions on Termination. After termination of the Agreement, Customer’s rights as to the Services and Documentation are relinquished. Termination of this Agreement for any reason does not excuse Customer’s obligation to pay the Order Form Fees in full for any balance of any amounts due or not yet paid to Mitratech. If Customer terminates this Agreement or an Order Form for an uncured breach by Mitratech, Customer will be entitled to a refund of Unused Prepaid Fees.
      2. For On Premise Services. Customer upon expiration of the Agreement or Order Form must remove and destroy all Mitratech intellectual property related to the terminated Order Form. Providing Mitratech notification of completion within 5 business days by written communication via email. Failure to submit proof or removal and destruction will result in annual fee assessments from Mitratech and annual renewal of the license agreement at the then current list price rates.
   7. Confidentiality.
      1. Defined. “Confidential Information”: information designated as confidential in writing or information which a reasonable person would in good faith consider to be confidential and proprietary to the disclosing party. Confidential Information includes but is not limited to the terms and conditions (but not the existence) of the Agreement (including all Order Forms & Schedules). Confidential Information of Mitratech includes the Services specifications, source code, Content, Documentation, Mitratech customer lists and information related to specific other customers of Mitratech, financial information of Mitratech and its affiliates, Mitratech sales proposals, results of testing and benchmarking of the Services, roadmap for the Services, Mitratech’s security documents and reports related to the Services, and other information of Mitratech and its licensors relating to or embodied in the Services or Documentation. Customer Data is Customer Confidential Information, except business contact information by itself is not Confidential Information. Placement of a copyright notice on any portion of any Software will not be construed to mean that such portion has been published and will not derogate from any claim that such portion contains proprietary and confidential information of Mitratech or Customer. 
      2. Non-Disclosure. Each party will protect, and will ensure that its employees, agents, and contractors will protect, the other party’s Confidential Information from unauthorized use or dissemination and will use the same degree of care that each such party uses to protect its own confidential information, but in no event less than a reasonable amount of care. Neither party will use Confidential Information of the other party for purposes other than those necessary to directly further the purposes of the Agreement. Neither party will disclose to third parties Confidential Information without prior written consent of the other party, except either party may disclose the terms of this Agreement to any of its advisors or potential successors in interest, if the advisors or successors are obligated to maintain the confidentiality of this Agreement. The receiving party’s obligation of confidentiality and non-disclosure will persist for 5 years after the termination of this Agreement, except for trade secrets (as determined under applicable law) in which case the obligation of confidentiality and non-disclosure will persist for as long as the trade secret protection persists.  
      3. Exceptions. Information shall not be considered Confidential Information to the extent, but only to the extent, that such information (i) is or becomes generally known or available to the public through no fault of the receiving party, (ii) was in the receiving party’s possession before receipt from the disclosing party, (iii) is lawfully obtained from a third party who has the express right to make such disclosure, or (iv) has been independently learned or developed by one party without reference to or use of any Confidential Information of the other. 
      4. Compelled Disclosure.  The receiving party may disclose Confidential Information of the disclosing party if compelled by law to do so, provided the receiving party gives the disclosing party prior notice of such compelled disclosure, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure. Confidential Information disclosed under this Section 7.4 shall be limited to that portion of the Confidential Information which, based on the reasonable advice of counsel, is legally required to be disclosed. The receiving party will otherwise exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to the Confidential Information.
   8. Intellectual Property. 
      1. Proprietary Rights. Mitratech and Customer will continue to own all copyrights, patents, trademarks, service marks, trade secrets, and other proprietary rights that such party owned immediately prior to this Agreement. No intellectual property is intended to be created or transferred in connection with this Agreement. Customer may submit bug reports, comments, suggestions, enhancement requests, recommendations or other feedback (“Feedback”), relating to the Services. By submitting Feedback, Customer assigns to Mitratech all rights, title, and interest in and to the Feedback.
      2. Mitratech Property.  Customer acknowledges that, as between Mitratech and Customer, Mitratech is and will remain sole and exclusive owner of all right, title and interest in and to the Services and Documentation, and all components and portions thereof, and all other materials, information, processes and technology used by Mitratech or made available to Customer in connection with the Services, and any and all improvements, enhancements, updates, upgrades and modifications to any of the preceding (whether or not made in conjunction with this Agreement), and all patent, trade secret, copyright, trademark and other proprietary rights worldwide embodied in each of the preceding.
      3. Customer Property.  As between Customer and Mitratech, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to Customer’s Confidential Information and the Customer Data.
      4. Machine Learning. Customer Data may be used by Mitratech and/or its Affiliates or shared with authorized third party service providers, contractors and/or agents to: (a) develop, train, or enhance artificial intelligence or machine learning models, products, services, features, and/or intellectual property, that are part of or may become part of Mitratech’s Services, including third-party components of the Services (collectively referred to as, “AI Services”),  and (b) analyze, assess and/or gather information related to Customer’s outputs, inputs, usage, functionality, and/or feedback relating to the AI Services,  which shall be used in an aggregate or deidentified form.    Nothing in this section will reduce or limit Mitratech’s obligations to comply with applicable data protection and privacy laws. Due to the nature of artificial intelligence and machine learning, information generated by these features in the course of using the Mitratech Services may be incorrect or inaccurate and shall be considered to be AS IS with no implied or express warranties associated with it. Customer represents and warrants that is has all rights, titles, interests or licenses in and to the Customer Data, and Customer authorizes Mitratech to process its Customer Data for the purposes listed herein.
   9. General Warranties.
      1. Warranties by Mitratech: Mitratech warrants that (i) it will provide Services in a manner consistent with industry standards reasonably applicable to the provision thereof, (ii) the Services do not infringe any intellectual property rights of any third party, (iii) the Services will materially conform to the applicable Documentation, and (iv) the Documentation will describe the Software Services.
      2. Warranties by Customer. Customer warrants that (a) it has all rights necessary to enter into this Agreement; (b) Customer will use the Services in compliance with all applicable laws, rules and regulations and (c) Customer will use the Services in accordance with this Agreement. 
      3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED AS A WARRANTY IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT IS PROVIDED “AS IS”.
         
      4. Restrictions.  Except as expressly provided in this Agreement or the Order Form, Customer may not:
         1. Copy, distribute, rent, lease, lend, sublicense, transfer or make the Services available to any third party; 
         2. Decompile, reverse engineer, or disassemble the Service (except and only to the extent such restriction is expressly prohibited by applicable law);
         3. Create derivative works based on the Services; or, modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on/in the Services or that appear during the use and operation of the Services.
   10. Indemnification
       1. Indemnification by Customer. Subject to the provisions contained herein, Customer agrees to defend, indemnify and hold Mitratech and its officers, directors, employees, agents, affiliates, licensors, distributors, and resellers harmless against any loss, damage, expense, or cost, including reasonable attorneys’ fees (including allocated costs for in-house legal services) (“Liabilities”) arising out of any claim, demand, proceeding, or lawsuit by a third party relating to Customer’s breach of its representations, warranties and covenants set forth in this Agreement.
       2. Indemnification by Mitratech.  In the event of a third party claim against Customer asserting that Customer’s use of the System infringes upon or violates any registered patent, copyright, trade secret, or other proprietary right, as Customer’s exclusive remedy, Mitratech will defend, at Mitratech’s expense, and will indemnify Customer and hold Customer harmless against any loss, cost, expense (including attorneys’ fees), or liability arising out of such claim, whether or not such claim is successful. In the event an injunction or order should be obtained against use of the System by reason of the allegations, or if in Mitratech’s opinion the System is likely to become the subject of such a claim of infringement, Mitratech will, at its option and its expense, and as Customer’s exclusive remedy:  (a) procure for the Customer the right to continue using the System; (b) replace or modify the same so that it becomes non-infringing (such modification or replacement shall be functionally equivalent in all material respects to the original); or (c) if neither (a) nor (b) is practicable, refund any prepaid subscription fees, on a pro-rated basis, for Services not rendered and terminate this Agreement. Notwithstanding the foregoing, Mitratech will not indemnify Customer to the extent that the claim arises because Customer altered the System or used it outside the scope of use identified in the Mitratech’s user documentation. In addition, Mitratech will not indemnify Customer to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by Mitratech, or (ii) any system from a third party portal or other external source that is accessible to Customer within or from the System (e.g., a third-party Web page accessed via a hyperlink) or (iii) based upon the combination of any system with any products or services not provided by Mitratech. This Section provides Customer’s exclusive remedy for any infringement claims or damages.
   11. Limitation of Liability. In no event shall either party be liable for any indirect, consequential, incidental, special or punitive damages, including without limitation loss of use, interruption of business, loss of data or loss of profits, arising out of or in any way connected with this Agreement, the Services, or any software supplied by Infosoft, or third party software, even if Mitratech has been advised of the possibility of such damages. Except with regards to a party’s intentional misconduct or fraud, confidentiality obligations, indemnification obligations, or data breach obligations, in no event will either party have liability, in the aggregate under this Agreement and regardless of the form of the action, for any amount in excess of the subscription fees paid by Customer under this Agreement during the prior twelve months of this Agreement. With regards to a party’s confidentiality obligations, indemnification obligations, or data breach obligations, in no event will either party have liability in the aggregate under this Agreement, regardless of the form of the action, for any amount in excess of five times (5x) the subscription fees paid by Customer under this Agreement during the prior twelve months of this Agreement. The limitations in this section do not limit Customer’s obligation to pay the fees owed under an Order Form governed by this Agreement.
   12. Governing Law and Venue.   Unless otherwise set forth in the Order Form, this Agreement shall be governed by and construed in accordance with the location listed below under “Governing Law,” without regard to its conflict of laws provision.
       

       Place of Address of Mitratech Contracting Entity	Governing Law
       United States or any domicile not covered in subsequent rows of this table	the State of Texas
       Canada	Ontario
       Europe, Middle East, or Africa	England/Wales
       Australia	Victoria

       
       Any dispute shall be brought and litigated in the state or federal courts of the Governing Law location, to whose exclusive jurisdiction the parties hereby consent. The parties agree that this contract is not a contract for the sale of goods; therefore, the Agreement shall not be governed by any codification of Article 2 or 2A of the Uniform Commercial Code, or any codification of the Uniform Computer Information Technology Act (“UCITA”), or any references to the United Nations Convention on Contracts for the International Sale of Goods. 

   13. Assignment. Either party may assign this Agreement in its entirety (together with all Order Forms) by written notice to the other party to: its parent company or affiliate, to a successor by operation of law, or by reason of a merger, reorganization, or the sale or transfer of all or substantially all of its stock or assets to another entity. However, if the assignment is to a direct competitor of the non-assigning party or to a party with which the non-assigning party is legally prohibited from conducting business (e.g., a party subject to an applicable trade embargo), then the non-assigning party may terminate this Agreement and receive a refund of Unused Prepaid Fees upon providing written notice to Mitratech. Neither party may otherwise assign or transfer this Agreement without the other party’s prior written consent (not to be unreasonably withheld).
   14. Notices. Any notice required or permitted under the Agreement shall be delivered by hand, overnight courier, email or registered mail (return receipt requested), to the address of the party first set forth in this Agreement or to another address designated in writing in accordance with this subsection. For email notices, the email notice is deemed received the day the email is sent. For physical notices, notice will be deemed to have been given when delivered by hand, courier or physical mail. Termination notices may be given via email to the other party’s account manager, and notices of non-payment may be provided via email to the then-current billing contact. 
       1. To Mitratech. Notices to Mitratech shall be sent 13301 Galleria Circle, Suite 200, Bee Cave, TX 78738, or [email protected].
       2. To Customer. Notices to Customer shall be sent to Customer at the address stated on the applicable Order Form.
   15. Taxes. Whether or not invoices for Services include sales tax, Customer is responsible to bear all applicable sales taxes associated with the purchase of Services. If Customer claims exemption from sales tax, it shall provide Mitratech with a valid sales tax exemption certificate. Customer warrants that Mitratech should base applicable sales tax rates using the Customer name and billing address on file with Mitratech or such other address as Customer shall specifically instruct Mitratech in writing. Each party is responsible for taxes imposed on its net income or gross receipts. Mitratech will remit any collected sales taxes as required by law to tax authorities for which invoiced sales tax was intended.
   16. Complete Agreement. This Agreement, including the Order Form and any attached addendums or exhibits, constitutes the parties’ entire agreement relating to its subject matter.  It cancels and supersedes all prior or contemporaneous oral or written communications, agreements, requests for proposals, proposals, conditions, representations, warranties, or other communication between the parties relating to its subject matter, including any Customer terms and conditions contained in any purchase order or other document, as well as any prior contractual agreements between the parties. No modification or amendment to the Agreement will be binding unless in writing and mutually executed by the parties.  All pre-printed terms of any Customer purchase order or other business processing document shall have no effect. If an Order Form conflicts with the Agreement, the Order Form shall prevail.
   17. Relationship of Parties. The Agreement is not intended to create a partnership, franchise, joint venture, agency, or a fiduciary or employment relationship.  Neither party may act in a manner which expresses or implies a relationship other than that of independent contractor.
   18. Severability. If any provision of the Agreement shall be held to be invalid, illegal, or unenforceable, then the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired.
   19. Force Majeure. Neither party will have the right to claim damages or to terminate this Agreement as a result of the other party’s failure or delay in performance (other than payment of money) due to circumstances beyond its reasonable control, including but not limited to labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, components, raw materials or supplies, war, riot, insurrection, epidemic, acts of God, or governmental action not the fault of the nonperforming party.
   20. Export Compliance. The Services and Documentation made available to Customer may be subject to export laws and regulations. Both Customer and Mitratech represent that it is not named on any U.S. government denied-party list, UK sanctions list, EU sanctions list, Consolidated Canadian Autonomous Sanctions List, and Consolidated List of Australia (“Denied Party Lists”). Customer shall not permit users to access or use the Services or Documentation by anyone on the Denied Party Lists.
   21. Anti-Corruption Compliance. The parties to this Agreement shall comply with all applicable laws, statutes and regulations relating to and governing anti-bribery and anti-corruption. The parties shall not engage in any activity, practice or conduct which would constitute an offense under such laws and regulations. The parties shall not, and shall procure that their employees, agents and sub-contractors shall not offer, solicit or accept an inducement/advantage in connection with the service under this Agreement.
   22. Headings and Drafting.  The headings in the Agreement shall not be used to construe or interpret the Agreement. The parties acknowledge they have had ample opportunity to consult with their attorneys prior to the execution of this Agreement, and any decision not to consult with an attorney was made on the party’s own volition. Parties further acknowledge they knowingly and voluntarily decided to sign and enter into this Agreement.
   23. Survival. Section 5(Fees), 6.1 (Actions on Termination), 7 (Confidentiality), 10 Indemnification, and 11(Limitations on Liability) shall survive the termination of this Agreement.
   24. No Waiver. The rights and remedies herein provided are cumulative and none are exclusive of any other rights and remedies in this contract or that any party may otherwise have at law or in equity. Failure, neglect, or delay by a party to enforce the provisions of the Agreement or its rights or remedies at any time shall not be construed and shall not be deemed to be a waiver of such party’s rights under the Agreement and shall not in any way affect the validity of the whole or any part of the Agreement or prejudice such party’s right to take subsequent action.