These Terms and Conditions (these “Terms” or this “Agreement”) sets forth the terms and
conditions under which SO Holdco, LLC, a Delaware limited liability company d/b/a MAXIO
will provide its application, materials, and services described on the applicable order (the
“Services”). “You” or “Your” as used in this Agreement refers to you, or your company, firm or entity, your officers, directors, shareholders, and employees. Capitalized terms used herein and not defined have the meaning assigned in the applicable Order (as defined below).
MAXIO hereby grants You a limited, non-exclusive, non-transferable, right to access and use the Services, solely for Your own internal business purposes and subject to these Terms and the terms set forth on the applicable order (each, an “Order”). All rights not expressly granted to You are reserved by MAXIO and its licensors. The foregoing license shall immediately terminate upon termination of this Agreement for any reason.
Title and copyrights in and to the Services, including any images, “applets,” photographs,
animations, video, audio, music, and text incorporated into or made a part of the Services, and all accompanying electronic materials, together with any copies You are permitted to make under these Terms, are owned by MAXIO or its licensors and are protected by the United States copyright laws and international treaty provisions. You are permitted to make copies of the training materials accompanying the Services solely for use as reference guides for authorized users using the Services pursuant to these Terms. All such copies shall contain the copyright and other proprietary notices of MAXIO. You are prohibited from any other copying of the printed materials accompanying the Services without the express written permission of MAXIO.
The Services may interoperate with various third-party platforms (“Third-Party Platforms”).
You acknowledge that such integration features may be unavailable or may not work properly if the Third-Party Platform (or its API) is unavailable or if the service provider modifies its API or services in a way that impacts the MAXIO’s integration feature. Continued interoperation of the Services with any Third-Party Platform is dependent upon the availability of each such platform and MAXIO may cease to provide such functionality if access to any Third-Party Platform is not available to MAXIO on commercially reasonable terms.
You agree to use the Services solely in conjunction with the operation of your business, and such operation may include use by related third-party partners, vendors, and clients with whom you collaborate in Your normal course of business and to whom you may grant access to Your Account. You are responsible for all use of the Services by your authorized users. You control access to and the management of the Your Data through Your account.
You acknowledge and understand that You are solely responsible for the use of and the results obtained from the Services. You will comply with any and all applicable laws regarding Your use of the Services including applicable international export rules and regulations, laws and treaties governing Your use of the Services, laws related to data privacy, international communications, and the transmission of technical or personal data.
You will not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise
commercially exploit or make available to any unrelated third party or competitor of MAXIO the Services in any way; (b) modify or make derivative works based upon the Services; (c) “frame” or “mirror” the Services on any other server or wireless or Internet-based device; (d) reverse engineer or access the Services in order to (i) build or offer a competitive product or service, (ii) build or offer a product or service using similar ideas, features, functions or graphics of the Services, or (iii) copy any ideas, features, functions or graphics of the Services; (e) use the Services (i) for any illegal purpose, (ii) for unauthorized access or distribution of any software, data, or material protected by copyright, patent, or trade secret, or (iii) to post or transmit any hateful, vulgar, threatening, libelous, abusive, harassing, defamatory, racially, ethnically, or otherwise unlawful or tortious material, including material harmful to children.
You shall not: (a) intentionally interfere with or disrupt the integrity or performance of the Services; or (b) attempt to gain unauthorized access to the Services, (c) intentionally send or store software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents or programs intended to interfere with the Services or other users of the Services.
You agree that the Services are not intended for use in the storage, processing, or handling of data that is (i) Protected Health Information subject to the Health Insurance Portability and Accountability Act, as amended (“HIPAA”), (ii) Sensitive Personal Data or (iii) the following data elements (a) Social Security number; (b) driver’s license number or government-issued identification card number; or (c) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an individual’s financial account. “Protected Health Information” has the meaning set forth in HIPAA, and “Sensitive Personal Data” has the meaning set forth in Article 9 of the European Union General Data Protection Regulation or other applicable data protection legislation.
MAXIO represents and warrants that:
it has the right, power, and authority to enter into these Terms, grant the rights and licenses granted herein, and fully perform its obligations hereunder;
the Services will perform materially in accordance with the applicable Documentation; for purposes of these Terms, “Documentation” means the operator and user information, training materials, guides, listings, specifications, and other materials, including online information and materials, relating to the use of the Services made available to You as part of the Services;
the Services and Your use thereof in accordance with these Terms do not infringe any intellectual property rights of any third party anywhere in the world and no third party, other than MAXIO’s licensors, has any proprietary interest in or to the Services;
the Services do not contain a malicious or disabling code that is intended to damage, destroy or destructively alter software, hardware, systems, or data; and
it maintains and enforces safety and physical security procedures with respect to its access to and maintenance of Your Data which include appropriate technical and organizational safeguards designed to protect against accidental or unlawful destruction, loss, alteration or unauthorized disclosure or access of Your Data; MAXIO will on an annual basis perform testing of its systems as reasonably appropriate to detect potential areas where security could be breached. In the event of any unauthorized access to Your Data (an “Incident”), MAXIO will: (i) notify You without undue delay, and in any event within seventy-two (72) hours of discovery; (ii) promptly investigate such Incident and provide a written report of such investigation (including the causes of the breach) to Client; (iii) promptly remediate the effects of such Incident; and (iv) cooperate with You with respect to any investigation regarding such Incident.
If the warranty set forth in subsection (b) is breached, then: (i) You must promptly notify MAXIO of the breach and provide any associated details reasonably requested by MAXIO in its attempt to remedy the defect. MAXIO will diligently and in good faith attempt to correct the reported defect within a commercially reasonable period of time. If MAXIO is unable to cure that defect, then You may elect to terminate your right to use Services and receive a refund of the unearned portion of any fees paid to MAXIO for the remainder of the then-current term.
MAXIO will use commercially reasonable efforts to ensure that the Services will be available 99.6% of the time each month other than during scheduled maintenance. You understand that normal maintenance and backup procedures will cause temporary downtime during which the Services cannot be used. It is possible that there will be interruptions of Services during non-scheduled maintenance. MAXIO will make commercially reasonable efforts to address errors and omissions in the Services and to ensure the Service is performing in a manner materially in compliance with the Documentation.
Your access to the Services is through the Internet, and you understand that your ability to use the Services is dependent on the global telecommunications infrastructure involving the reliability and performance. The Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. MAXIO is not responsible for any delays, delivery failures, or other damage resulting from such problems.
MAXIO makes regular changes and improvements to the Services from time to time but in no event will such changes materially reduce the functionality provided by the Services as of the date of the applicable order. MAXIO will communicate with You about planned changes as may be necessary to ensure Your efficient use of the Services. MAXIO will provide its standard support at no additional charge.
MAXIO may use any feedback or suggestion it receives from You with respect to the Services (“Feedback”) for the purpose of optimizing, improving, enhancing, and/or creating derivative products. MAXIO shall have no obligation to compensate You in connection with the use of such Feedback nor shall MAXIO identify You as the source of any such Feedback. All Feedback shall be owned by MAXIO and You shall and hereby do, assign all of Your right, title, and interest in and to such Feedback to MAXIO.
MAXIO does not own any data, information, or material that is submitted to the Service by You (“Your Content”). You retain all right, title, and interest (including, where appropriate, copyright and other proprietary or intellectual property rights) in Your Content, and MAXIO explicitly disclaims any ownership of, or right, title, and interest in such content.
As between MAXIO and You, You have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of, or right to use, Your Content. MAXIO will only use Your Content solely for purposes of providing the Services, providing support for the Services, and confirming Your compliance with these Terms. In addition, You acknowledge that MAXIO may collect and analyze Your Content and other information about Your usage of the Services to improve and enhance the Services, provide support, and for other development purposes including industry-wide benchmarking; provided, however, Your Content used for benchmarking will be aggregated and anonymized and MAXIO will not disclose any personally identifiable information provided by You.
Your Content is considered Your Confidential information. You are responsible for exporting Your Content from the Services prior to termination of the applicable Order.
The fees payable for the Services (the “Fees”) shall be stated and paid in the currency specified in the applicable Order and are non-refundable. Unless otherwise specified in the applicable Order, You shall pay the Fees within thirty (30) days from the invoice date, without setoff or deductions and otherwise in accordance with the terms of the Order.
If any invoiced amount is not received by MAXIO by the due date then those amounts shall accrue late interest at a rate of one and a half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower, commencing on the date that payment was due.
All Fees are exclusive of federal, state, local and foreign taxes, duties, levies, withholdings and similar assessments (“Taxes”) and You are responsible for the payment of all Taxes, excluding Taxes on MAXIO’ net income.
MAXIO reserves the right to modify the Fees for the Services, effective upon commencement of the next Renewal Term, by notifying You of such change in writing at least sixty (60) days before the end of the then-current Term.
The term of this Agreement shall be for so long as there are then current orders attached to and made a part hereof unless earlier terminated as provided herein. The term of each Order will be as stated in the applicable Order.
Either party may, at its option, terminate this Agreement and/or any then-current Order(s) if the other party materially breaches the terms of this Agreement or the applicable Order and fails to cure the same within thirty (30) days after notice.
MAXIO may suspend your access to the Services and Your Content during any period that you are in material breach of this Agreement or your access to and use of the Services or Your Content creates a material security vulnerability. Where practicable, MAXIO will give you at least two (2) days’ advance notice of the suspension unless the suspension is made under emergency circumstances. MAXIO will reinstate your access to the Services when the grounds for suspension are cured.
Upon termination of Your access to or use of the Services for any reason, MAXIO will retain Your Content for up to sixty (60) days from the effective date of termination. If you wish to export Your Content following a termination for breach, MAXIO will either, at its option, enable short-term access to the Services at a scheduled time so that you may export Your Content, or export Your Content using its standard export tools. MAXIO has no obligation to retain Your Data after the sixty (60) day period and may destroy Your Content any time thereafter.
The following sections survive expiration or termination of this Agreement: Section 7 (Your Information); Section 8 (Fee; Payment Terms); Section 9 (Termination); Section 10 (Confidentiality); Section 11 (Indemnification); Section 12 (Limitation of Liability); Section 16 (Governing Law; Export Compliance); and any other terms that by their nature are intended to survive expiration or termination.
You and MAXIO may disclose information to one another, and You may access information in connection with the Services, which is considered by the disclosing party to be proprietary or confidential information (“Confidential Information”). Confidential Information includes any information or data, in any form, including, but not limited to oral, written, graphic or electromagnetic forms, models, or samples, which the disclosing party identifies as confidential or which is of such a nature that the receiving party should reasonably understand that the disclosing party desires to protect such information or data against unrestricted disclosure or use, including business information, financial data, and marketing data. All Confidential Information shall remain the sole property of the disclosing party and its confidentiality shall be maintained and protected by the receiving party with the highest degree of care during the term of this Agreement and for a period of three years following the expiration or termination of this Agreement. The receiving party shall not use the Confidential Information of the other party except as necessary to fulfill its obligations under this Agreement, nor shall it disclose such Confidential Information to any third party without the prior written consent of the disclosing party; provided, however, the receiving party may disclose the disclosing party's Confidential Information to its employees, consultants, and agents who are bound by obligations of confidentiality no less protective than those set forth in these Terms, and receiving party shall be responsible for any unauthorized disclosure of any Confidential Information by such persons as if receiving party had made such unauthorized disclosure itself.
The restrictions on the use or disclosure of Confidential Information shall not apply to any Confidential Information: (i) after it has become generally available to the public without breach of this Agreement by the receiving party; (ii) is rightfully in the receiving party’s unrestricted possession prior to disclosure to it by the disclosing party; (iii) is independently developed by the receiving party; (iv) is rightfully received by the receiving party from a third party without a duty of confidentiality; or (v) is disclosed under operation of law. Further, in the event such disclosure is required of either party under judicial order or requirement of law, such party will promptly notify the disclosing party of such order or requirement.
You understand that MAXIO implementation and support personnel may need to access Your Account to assist You in Your implementation, as well as to address support requests that may occur from time to time, but such access shall be on a need-to-know basis. You permit MAXIO’ implementation and support personnel to access Your Account with the understanding that all information in Your Account shall be considered Confidential Information by MAXIO personnel. MAXIO agrees to hold in confidence and not reproduce, distribute, infringe on, transmit, or transfer, directly or indirectly, in any form, by any means, the Confidential Information.
By MAXIO: MAXIO will indemnify, defend and hold You harmless from and against any and all claims, actions, losses, damages, liabilities, costs, and expenses including, without limitation, reasonable attorneys’ fees and disbursements (collectively, “Losses”) incurred by You arising out of any third-party claim that the Services delivered under this Agreement infringe any patent, copyright or other intellectual property right of a third party.
If the Services or any part thereof becomes the subject of a valid claim of infringement under any patent, copyright or trade secret law, MAXIO will either procure the right, at MAXIO’ sole expense, to permit Your continued use of the Services, or replace or modify the Services so as to avoid infringement without materially altering the functionality and performance thereof. If MAXIO reasonably and in good faith determines that neither of the foregoing are commercially practicable, MAXIO may terminate these Terms and the licenses granted herein effective immediately upon written notice to You and will refund the unearned pro-rata portion of any prepaid amounts.
THIS SECTION STATES YOUR SOLE AND EXCLUSIVE REMEDY AND MAXIO’s’ ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.
By You. You shall indemnify, defend and hold harmless MAXIO and MAXIO’ officers, directors, employees and agents (each a “MAXIO Indemnitee”) against any and all Losses incurred by a MAXIO Indemnitee in any action between such MAXIO Indemnitee and any third party arising out of or in connection with Your use of the Services.
Process. The indemnification obligations set forth herein are contingent upon the following conditions: (i) MAXIO or You, as the case may be (the “Indemnified Party”) must promptly notify the other party (the “Indemnifying Party”) in writing of the third party claim or action (however, failure of the Indemnified Party to so promptly notify the Indemnifying Party will not relieve the Indemnifying Party of its indemnification obligations hereunder, except to the extent it has been damaged thereby); (ii) the Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of the matter; and (iii) the Indemnifying Party will have sole control of the defense of the action and negotiations for its settlement and compromise; provided, however, that the Indemnified Party may, at its own cost, obtain separate counsel to represent its interests.
EXCEPT FOR (I) A MATERIAL BREACH OF THE CONFIDENTIALITY PROVISIONS SET FORTH IN SECTION 10, (II) EACH PARTY’S INDEMNIFICATION OBLIGATIONS, (III) LOSSES CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY; AND/OR (IV) YOUR OBLIGATION TO REMIT ALL AMOUNTS PROPERLY DUE AND OWING UNDER THIS AGREEMENT, EACH PARTY’S LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT OR IN TORT (INCLUDING WITHOUT LIMITATION, BREACH OF WARRANTY AND NEGLIGENCE CLAIMS) SHALL BE LIMITED TO THE ACTUAL, AWARDED DIRECT DAMAGES, NOT TO EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE CAUSE OF ACTION AROSE; PROVIDED, HOWEVER, IN THE EVENT OF A BREACH OF THE WARRANTY SET FORTH IN SECTION 4(E) AS A RESULT OF THE ACTS OR OMISSIONS OF MAXIO OR ITS EMPLOYEES OR AGENTS, MAXIO’S LIABILITY WILL NOT EXCEED ONE MILLION DOLLARS. IN NO EVENT WILL EITHER PARTY, THEIR RESPECTIVE LICENSORS, OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS OR AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY FOR (1) ANY CLAIMS OR DEMANDS OF THIRD PARTIES (OTHER THAN THOSE THIRD PARTY CLAIMS COVERED BY SECTION 11); OR (2) ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR ANTICIPATED PROFITS, LOSS OF REVENUE, ECONOMIC LOSS, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE OF EQUIPMENT, OR INTERRUPTION OF BUSINESS, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
Neither party shall be under any liability to the other for any delay in performing any obligation under this Agreement to the extent caused by reason of circumstances beyond the reasonable control of that party and without such party’s fault or negligence, which shall include but not be limited to acts of God, war, strikes, lack or failure of transportation facilities, acts of terrorism, fire, acts of government authority. In the event of a force majeure event, the affected party shall give prompt written notice to the other party, stating the period of time the same is expected to continue. If any such failure or delay in performance continues for more than sixty (60) days, either party may terminate this Agreement upon written notice to the other.
You and MAXIO are independent contractors, and no agency, partnership, joint venture, employee-employer, or franchisee-franchisor relationship is intended or created by this Agreement.
Except as explicitly stated otherwise, any notice to MAXIO shall be given in writing to Legal Counsel at MAXIO:
SO Holdco, LLC
Attention: Legal Counsel
6575 The Corners Parkway STE 400
Atlanta, GA 30092
Any notice to You will be given to the address You provide to MAXIO during the registration and provisioning process. Either party may update its address by proper notice to the other party in the same manner as provided herein. Notice shall be deemed given twenty-four (24) hours after the notice is sent, unless the method of communication is email and the sending party is notified that the electronic mail address is invalid. Alternatively, either party may give notice by certified mail, postage prepaid and return receipt requested, to the address provided to the other party during the registration and provisioning process. In such case, notice shall be deemed given three (3) days after the date of mailing.
This Agreement is subject to the laws of the State of Delaware, U.S.A. (without regard to its conflicts of laws provisions). The Services may be subject to export laws and regulations of the United States and other jurisdictions. You may not permit users to access or use the Services in a U.S.- embargoed country or in violation of any U.S. export law or regulation, or in a manner that causes MAXIO to be in violation of U.S. export laws, even if the use is permitted the laws applicable to you or your user or customer. Each party represents that it is not on any restricted persons list maintained by the U.S., Canada, or any member of the European Union.
This Agreement, together with the applicable Order(s) comprises the entire agreement between You and MAXIO with respect to the subject matter hereof and supersedes all prior agreements between the parties regarding the subject matter of this Agreement. In the event of a conflict between the terms of the Agreement and any Order, the terms set forth in the applicable Order govern. You acknowledge that any pre-printed terms and conditions on or attached to Your purchase orders will be of no force or effect. If one or more of the paragraphs in this Agreement are found to be unenforceable or invalid, the remaining paragraphs shall remain in effect.
This Agreement may not be assigned by a party without the prior written consent of the other party unless such assignment is to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of You that results or would result in a direct competitor of MAXIO directly or indirectly owning or controlling 50% or more of You shall entitle MAXIO to terminate this Agreement for cause immediately upon written notice.
If this Agreement is being accepted by any individual for You, then You represent, warrant and attest that such individual has the authority to execute this Agreement on Your behalf.
MAXIO may amend these Terms from time to time, and the revised Terms shall be effective upon the commencement of the next Renewal Term (as defined in the applicable Order). Any such revisions will apply to MAXIO’s customers generally, will not impose additional fees during the applicable Term, or alter the allocation of risk between you and MAXIO.
You agree that MAXIO may include identification of you as a customer on MAXIO's website, provided that such identification is no more prominent than the identification of MAXIO’s other customers and is otherwise consistent with MAXIO’s practice of identifying its customers on its website at the time. Except as otherwise provided herein, each party agrees to submit to the other party all press releases and other publicity matters or materials relating to this Agreement, or mentioning or implying the trade names, logos, trademarks or service marks of the other party, and each party further agrees not to publish or use such press releases or publicity matters or materials, without the other party’s prior written consent except to the extent that a Party determines that a disclosure is required by applicable law.
Each party is responsible for complying with all applicable local, state, provincial, federal, and international laws and regulations (“Applicable Laws”), including applicable data protection legal requirements, for the purposes of this Agreement. MAXIO shall implement and maintain commercially reasonable technical, administrative, and physical safeguards and security methods designed to prevent any unauthorized release, access to, or publication of Your Content. MAXIO shall implement processes and maintain procedures designed to comply with Applicable Laws and shall facilitate your compliance with your obligations for data security and response to individual data subject requests with respect to Personal Information in MAXIO’ possession or control, to the extent that you are required to comply with the following: (i) the U.K. Data Protection Act 2018 and the United Kingdom General Data Protection Act ("UK GDPR"); (ii) the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council (“GDPR”) and any applicable laws enacted by an EU member state implementing the requirements of GDPR; (iii) the Australian Privacy Act 1988 and National Privacy Principles; (iv) the Canadian Personal Information Protection and Electronic Documents Act; (v) the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq. and implementing regulations (“CCPA”); (vi) any other existing or newly enacted Applicable Laws regarding privacy; and (vii) any amendments and successors to the foregoing. This Agreement and the Documentation are your instructions for processing Your Content, and MAXIO shall not process Your Content for any other purpose. MAXIO may use subcontractors to facilitate its obligations under this Agreement, and MAXIO shall be responsible for the acts and omissions of such subcontractors relating to this Agreement as though they were those of MAXIO. MAXIO shall use commercially reasonable measures to ensure that such subcontractors implement and comply with reasonable security measures in handling any Your Content.
If MAXIO processes Your Content on behalf of you for the provision of the Services, the parties acknowledge and agree that MAXIO is a “Service Provider” as defined in the CCPA, and Your Content may include personal information, as that term is defined by the CCPA (“CCPA Personal Information”). MAXIO does not sell CCPA Personal Information. When MAXIO processes CCPA Personal Information for or on your behalf, MAXIO collects, retains, uses, and discloses such CCPA Personal Information solely for the permitted purposes described in this Agreement, and for no other commercial purpose. MAXIO certifies that it understands and will comply with the restrictions set forth in this Section 4(d) (CCPA Service Provider).
To the extent that MAXIO processes any Personal Data (as defined in the MAXIO Data Processing Addendum, (the “DPA”)) and (i) the Personal Data relates to individuals in the EEA or the United Kingdom, or (ii) you are established in the EEA or the United Kingdom, you agree that MAXIO does so as a processor only and the parties agree to comply with the DPA.