“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, Controls, is controlled by or is under common Control with such Person.
“Agreement” means this Master Subscription Agreement.
“Aggregated Data” means User(s) Data and usage information from which all direct and known indirect identifiers have been removed, and on which technical, organizational, and legal controls prevent employees, researchers or other third parties from re-identifying individuals. Aggregated Data therefore meets the standard of “protected de-identified,” and therefore no longer constitutes Customer Data.
“Allowance” means amounts and levels of the Services to be permitted to be used by Customer.
“Applicable Law” means, as applicable to the Parties or any other Person in connection with this Agreement, any law (including common law), ordinance, statute, treaty, rule, Order, regulation, official directive, Supervisory Objection, consent, approval, opinion, interpretation, regulatory guidance, authorization or other determination or finding of any Governmental Body, applicable to or binding upon such Person or to which such Person is subject, whether federal, state, county, local, foreign or otherwise, as may be amended and in effect from time to time.
“Authorized User(s)” or “User(s)” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use Services for whom Customer has purchased a subscription (or in the case of any Services provided by MRBD without charge, for whom a Service has been provisioned), and to whom Customer (or when applicable, MRBD at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). User(s) may include but not limited to employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business including Customer Client and Customer Client’s customers.
“Change in Control” means, with respect to an entity, (1) a reorganization, merger, consolidation, sale of all or substantially all of the assets of, or other corporate transaction involving, such entity (a “Transaction”), in each case, with respect to which those stockholders of the entity immediately prior to such Transaction do not, immediately after the Transaction, own more than fifty percent (50%) of the combined voting power of the entity or the other corporation resulting from such Transaction.
"Change Order” means a new Statement of Work or Order Form for any significant modification to the Scope of Work agreed upon in the SOW or Order Form.
“Communication(s)” means oral or written communication (by electronic transmission or otherwise).
“Consultancy Fee(s)” means rate per hour or daily charges and expenses for Consultancy Services. MRBD’s standard hourly rates or standard fees on its current fee schedule shall apply, such standard hourly rates may be amended by MRBD from time to time, or which may otherwise be set out in a Statement of Work or Order Form.
“Consultancy Service(s)” means but not limited to MRBD’s time spent for training and general consultancy services, including project management, delivery, installation, implementation, creation and/or implantation of an SOW, and/or training; the initial amounts of which required by Customer and any timeframe for delivery all being as specified in an SOW.
“Content” means text and media obtained from publicly available sources, Customer, or its third-party content providers and made available to Customer through the Services, or pursuant to an Order Form or an SOW.
“Control” means, with respect to a Person, the power to direct, or cause the direction of, the management and policies of the Person, whether through ownership of voting securities, by contract or otherwise; provided, that the power to direct the voting of securities representing 50.1% or more of an entity’s voting power shall always be deemed to constitute “Control”.
“Cost(s)” includes but are not limited to, administrative and clerical expenses, Travel Expenses, the cost of legal services, whether performed by in-house counsel or private counsel, the costs of services by accountants, consultants, or other retained by MRBD, as well as the cost of hours for its employees, officers and directors or consultants for time spent during and after a request for research to provide documentation or information with regards to any federal, local or foreign government or other regulatory request, judicial or administrative proceeding and any costs incurred which bear direct relationship to such request for research including copying costs and or cost for IT technicians to produce such information.
“Customer” means a client of MRBD and in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms or SOWs or receiving Services under this MSA.
“Customer Client” means an entity or an individual who is contracted with Customer to transact business utilizing Customer’s Services and is an Authorized User(s).
“Customer Data” means any electronic data, materials, data and information submitted by or for Customer to the Services, excluding Content and Third-Party Applications. Customer Data and its derivatives will not include MRBD’s Confidential Information.
“Delivery Date” means the date the Purchased Service(s) begins.
“Fee(s)” means obligation by Customer to pay for Services, Costs, and Travel Expenses that are attributable to Customer under the SOW, Order Form, or MSA for the completion of the Services, Additional Services, and continued access to Services.
“Force Majeure” means circumstances beyond a Party’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving the Parties’ employees), equipment (including Third-Party Applications) failure, internet service provider failures or delays, or denial of service attacks.
“GAAP” means, as of a particular time, generally accepted accounting principles as in effect in the United States as of such time.
“Governmental Body” means any government or governmental or regulatory body thereof, or political subdivision thereof, whether foreign, federal, state or local, or any self-regulatory organization, agency, instrumentality or authority, or any court or arbitrator (public or private).
“Intellectual Property Right(s)” means patents, trademarks, service marks, registered designs, applications for any of those rights, trade and business names, unregistered trademarks and service marks, copyrights, know-how, database rights, rights in designs and inventions and all other rights of the same or similar effect or nature, including all renewals, applications and registrations (and the right to apply for registration) relating to any of the foregoing.
“Infrastructure” means virtual or physical servers on premises of MRBD or with a third-party hosting service provider chosen by MRBD, where IT systems, devices and components are installed covering stabilized power, cooling, network and space. Customer access to Services uptime will not be the responsibility of MRBD.
“Launch Date” means the date Customer commercially launches its Purchased Services to User(s).
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Master Subscription Agreement” or “MSA” means this Agreement.
“MRBD” means the MRB Direct, Inc and its Affiliate.
“MRBD Entities” means (i) MRB Direct, Inc, its Affiliate, and any company or entity including joint venture in which it holds fifty percent (50%) or more of the shares or voting power of and (ii) the officers, employees and contractors of the entities referred to in (i) above.
“Non-MRBD Application(s)” means a Web-based, mobile, offline or other software application functionality that interoperates with a Service, that is provided by Customer or a third-party. Non-MRBD Applications, other than those obtained or provided by Customer, will be identified as such.
“Order” means any order, injunction, judgment, doctrine, decree, ruling, writ, assessment or arbitration award of a Governmental Body.
“Order Form” means a list of Services on an ordering document offered to Customer and subject to MSA.
“Out of Scope Service(s)” or “Additional Service(s)” means any Services, Purchased Services, Consultancy Services, Technical Support that is not specified in an Order Form or SOW that Customer requested as Additional Services and performed by MRBD. Oral or written authorization can be given by Customer to MRBD to perform such Additional Services. In the absence of any other written agreement concerning such Additional Services, this MSA shall govern.
“Overages” means the Volume exceeds the Allowance specified in the MSA triggering additional fees at the rate also specified or otherwise referred to in a SOW or Order Form, or agreed upon by the Parties. Oral or written authorization can be given by Customer to MRBD for the costs of Overages. In the absence of any other written agreement concerning such Overages, this MSA shall govern.
“Parties” or “Party” means collectively MRBD and Customer and “Party” shall be construed as the context requires.
“Person” means any individual, corporation, limited liability company, partnership, firm, joint venture, association, joint-stock company, trust, non-profit, unincorporated organization, bank, credit union, trust bank, other organization or Governmental Body.
“Platform” means the tools, applications and processes integrated by MRBD and delivered over the internet.
“Project” means a set of tasks that must be completed to accomplish a particular goal or outcome for Customer as summarized in a SOW or Order Form.
“Project Technology” means any information, materials and technology used or developed in connection with or otherwise relating to the Services or a particular SOW, including without limitation any techniques, data, models, inventions, methods and patent and legal data or descriptions.
“Proprietary Technology” means any technology as conceived, developed, reduced to practice owned by MRBD or its Affiliates, including closed-source software for which MRBD has the right to offer Customer as Purchased Services and may include any combination of processes, tools, or systems of interrelated connections that are the property of MRBD. Customer agrees that it does not have any rights to any Proprietary Technology or Intellectual Property arising out of the Project or Services.
“Purchased Service(s)” or “Services” means the products, software, services, Technical Support, Platform, and Consultancy Services that Customer or Customer’s Affiliate purchased or ordered under an Order Form, SOW or Additional Services covered under this MSA made available by MRBD. “Services” exclude Content and Third-Party Applications.
“Scope of Work” (also referred to as scope, scope of project, or scope of arrangement) means an outline of the Services for Customer on the Platform.
“Statement of Work” or “SOW” means a statement of work specifying the Services to be provided hereunder that is entered into between Customer and MRBD or any of their Affiliates, including Consultancy Services and any addenda and supplements thereto. By entering into an Order Form or an SOW hereunder, Customer, its Affiliates, and Subsidiaries agrees to be bound by the terms of this Agreement as if it were an original Party hereto. Unless otherwise stated in the SOW, this Agreement shall govern the relationship between the Parties.
“Subscription Fee(s)” means the recurring payments that are scheduled on a regular basis billed monthly, quarterly, or annually to Customer for its subscriptions (under Section 3.1) for its Authorized Users to access MRBD’s Services, Technical Support, and Platform.
“Subsidiary” means with respect to any person, any corporation, limited liability company or other legal entity of which that person or one of that person’s other subsidiaries, in either case, acting alone or with one or more of that person’s other subsidiaries, owns, or has the power to vote or exercise a controlling influence with respect to, more than half of the capital stock or other ownership interest giving holders the right to one or both of the following: (i) elect the board of directors or other governing body of that legal entity; and (ii) receive the net assets of that legal entity available for distribution to holders of all stock or other ownership interests upon liquidation or dissolution of that entity.
“Supervisory Objection” means (i) an objection or criticism, orally or in writing, raised by a Governmental Body having supervisory or regulatory authority over Customer that expresses the Governmental Body’s opinion that one or more provisions of this Agreement is likely to constitute or result in a violation of Applicable Law or unsafe or unsound practices, (ii) any cease-and-desist or other similar formal written order of a Governmental Body, or (iii) a written directive by a Governmental Body to cease or limit performance of material obligations under this Agreement.
“Support” means support for the Services and maintenance services as specified in Exhibit A.
“Third-Party” means a person or entity other than MRBD and Customer.
“Third-Party Application(s)” or “OEM Partner(s)” means any online applications and offline software products that is not MRBD Technology but licensed to MRBD, whereby MRBD and OEM Partner have an agreement or understanding that MRBD will offer to Customer under an agreement to use the Third-Party Applications as part of the Services on the Platform.
“Third-Party Products” means Third-Party Applications and Non-MRBD Applications that may or may not interoperate with MRBD Technology on the Platform, including data integration using API (Application Programming Interface) or by downloading or uploading data between Third-Party Products and MRBD Technology in any file format.
“Travel Expense(s)” means reimbursable expenses for travel, including but not limited to, actual mileage driven, transportation, lodging and meals, incident to the rendering of Services reasonable incurred on behalf of MRBD. Reimbursable expenses also include travel time incurred by MRBD employees, officers or directors, MRBD standard hourly rates or standard fees on its current fee schedule shall apply, such standard hourly rates may be amended by MRBD from time to time, or which may otherwise be set out in a Statement of Work or Order Form.
“User Data” means a User(s) account information, account access information and registration information, as provided by User(s) and/or by Customer and Customer Client’s Authorized User(s) stored in Infrastructure and accessible on Platform.
“Volume(s)” means the actual amounts and levels of the Services used by Customer and/or User(s).
“Website” means Parties publicly accessible, interlinked web pages that share a single domain name.
“Workflow” means a series and/or sequence of events, actions or tasks (which can initiate data flow and processes that are manual, robotic or automated) that have a beginning and end with a specified outcome (which can initiate another Workflow or set of Workflows).
“Work Product” shall mean (i) any and all discoveries, works of authorship, innovations or inventions (whether or not patentable), knowledge, ideas, concepts, techniques, know-how, methods, processes, systems and devices authored, created, found or conceived by MRBD in the course of its performance of the Services, (ii) any other work product made by MRBD in the course of its performance of the Services, or (iii) Project Technology.