MSA

MindTouch Enterprise Master Subscription Agreement 

This MindTouch Enterprise Master Subscription Agreement (the "Agreement"), dated this December 17, 2009 (the “Effective Date”) is entered into between MindTouch, Inc., a Delaware corporation, with its principal place of business at business at 555 W. Beech St., Ste. 501, San Diego, CA  92101 (“MindTouch”), and the company (the "Company") listed on the attached Order Form (as defined below). 

1. SCOPE OF AGREEMENT. 

   This Agreement and any attachment hereto establishes the terms and conditions that apply to Company’s (and its Licensed Users’) use of the Software (as defined below), Maintenance (as defined below) provided by MindTouch and Services (as defined below) provided by MindTouch.  The specific Software, Maintenance and Services that MindTouch will provide to Company will be described in an Order Form, signed by the parties or otherwise accepted by MindTouch, which may be placed by Company through MindTouch's online store accessible from a MindTouch website.  The parties agree that the terms of this Agreement will govern all licenses, purchases and use by Company (and its Licensed Users’) of Software, Maintenance and Services unless otherwise agreed by the parties in writing. 

   1. Definitions.

      As used in this Agreement:

      1. “Maintenance” means MindTouch provided and certified Software maintenance.
      2. “Order Form” means collectively the contract and order documents representing the initial license of the Software, the initial purchase of Maintenance and/or the initial purchase of Services (and any subsequent licenses or purchases agreed to between the parties in writing from time to time).
      3. “Services” means MindTouch provided and certified Software support.
      4. "Software" means MindTouch 2009 or subsequent MindTouch collaboration software releases, MindTouch Dream, and other software programs branded by MindTouch, its Affiliates and/or third parties. 

   2. Affiliates.

      MindTouch and Company agree that Affiliates of Company may acquire Software from MindTouch or its Affiliates by entering an Order Form with MindTouch (or an MindTouch Affiliate) that incorporates the terms and conditions of this Agreement. The parties acknowledge that adjustments to the terms of this Agreement may be made in a particular Order Form (for example, to address disparate tax and/or legal regimes in other geographic regions). "Affiliate" means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a party, where "control" is the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.

   3. Evaluation Use.

      Company may grant its end users the right to evaluate the Software pursuant to the license grants in Section 2.1, and the applicable Restrictions in Section 2.2, for no additional license fees, provided that the end user licenses the Software for no more than fifteen (15) days (“Evaluation Use”) and provided that such end user’s evaluation is pursuant to the terms and conditions of MindTouch’s then current Evaluation License, located at: http://MindTouch.com. MindTouch will not be obligated to provide any maintenance or support for Evaluation Use.

2. LICENSE GRANTS, RESTRICTIONS AND OWNERSHIP.

   1. Grant to Company.

        For the term stated in the applicable Order Form accepted by MindTouch, and subject to Company's compliance with the terms hereof, MindTouch grants Company a revocable, non-exclusive, non-transferable, non-sublicensable, limited license to use and modify the Software only for Company's own internal use of the Software and limited to the number of Licensed Servers and/or Licensed Users.  A "Licensed Server" means a single instance of Software running in a single operating system used by Company to run the Software per the terms of this Agreement. "Initial Licensed Server" means a Company Server used to run the Software upon Company's payment of the Fee according to a duly signed and authorized Order Form. "Additional Licensed Servers" means a Company Server used to run the Software after the Company has paid the Fee but prior to the termination or expiration of this Agreement. Collectively, all of the "Initial Licensed Servers" and "Additional Licensed Servers" comprise, and shall be referred to, as the "Licensed Servers.”  A “Licensed User” means an individual who is authorized by the Company to use the Software, for whom a Fee for licenses to the Software has been paid.  Licenses to Licensed Users cannot be shared or used by more than one individual.  Company shall cause Licensed Users to agree to be bound by the license scope and restrictions applicable to the Company in this Section 2.1 and Section 2.2 below.

   2. Restrictions.

        Company and its Licensed Users shall not, directly or indirectly: (i) sublicense, resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or usage to: (a) the Software, (b) any modified version or derivative work of the Software created by the Company or its Licensed Users or for the Company or its Licensed Users, or (c) MindTouch Core (which includes all non-supported versions of MindTouch-developed software), for any purpose including timesharing or service bureau purposes; (ii) remove or alter any copyright, trademark or proprietary notice in the Software; (iii) transfer, use or export the Software in violation of any laws or regulations of any government or governmental agency; (iv) use or run on any of Company's hardware, or have deployed for use, any production version of MindTouch Core ; (v) use any support services for the MindTouch Core software or for any server for which support services are not then purchased; or (vi) reverse engineer, decompile or modify any encrypted or encoded portion of the Software.

   3. Proprietary Rights.

      MindTouch and its licensors shall own all right, title, and interest to the Software, technology, information, code or software provided to Company, including all portions, copies or modifications thereof.

   4. US Government Restricted Rights.

        If Company is the United States Government or any contractor thereof, use, duplication, and disclosure of the product acquired hereunder and all licenses granted hereunder are subject to the following: (i) for acquisition by or on behalf of civilian agencies, as necessary to obtain protection as "commercial computer software" and related documentation in accordance with the terms of this commercial computer software subscription and as specified in Subpart 12.1212 of the Federal Acquisition Regulation (FAR), 48 C.F.R. 12.1212, and its successors; and (ii) for acquisition by or on behalf of the Department of Defense (DOD) and any agencies or units thereof, as necessary to obtain protection as "commercial computer software" and related documentation in accordance with the terms of this commercial computer software subscription and as specified in Subparts 227.7202-1 and 227.7202-3 of the DOD FAR Supplement, 48 C.F.R. 227.7202-1 and 227.7202-3, and its successors.

   5. Grant to MindTouch.

      Neither party will, without the other party’s prior written consent, make any news release, public announcement, denial or confirmation of this Agreement, its value, or its terms and conditions, or in any manner advertise or publish the fact of this Agreement. Notwithstanding the above, MindTouch may use Company’s name and logo, consistent with Company’s trademark policies, on customer lists so long as such use in no way promotes either endorsement or approval of MindTouch or any MindTouch products or services. Additionally, Company agrees to make representatives available, subject to their availability and only on an occasional basis, to serve as a non-public reference to prospective MindTouch customers to discuss Company’s experience working with MindTouch.  Company also agrees to work with MindTouch in developing and publishing case studies and press releases that describe its use of the Software, provided that such publicity neither expresses endorsement nor approval of MindTouch or any MindTouch products or services, unless agreed to otherwise by Company.

3. FEES AND PAYMENT.

   1. Fee.

      Company shall pay to MindTouch the amount specified in the Order Form for the Software licenses and Maintenance and Services ("Fee"). Payment for the Fee shall be due and payable according to the terms specified in the Order Form. All licensing of Software and purchasing of Maintenance and Services will be at the at the then current rate.  Fees are exclusive of, and Company is responsible for, shipping costs, duties and taxes (including Value Added Tax which shall be paid by the Company, if applicable, at the rate and in the manner for the time being prescribed by law). Except as otherwise set forth in this Agreement, all fees paid to MindTouch are non-refundable.

   2. Records Retention.

        Company shall maintain accurate records necessary to verify the number of Licensed Servers and Licensed Users. Upon MindTouch's written request, Company shall provide MindTouch with such records within ten (10) business days.  If Company has more Licensed Servers and/or Licensed Users than Company has paid for, Company shall immediately pay MindTouch the applicable Fee.

   3. Ordering of Additional Licenses.

      Licenses for Licensed Servers and/or Licensed Users may be ordered from time to time under the terms of this Agreement by Company through an Order Form although MindTouch has no obligation whatsoever to accept such Order.  Additional Fees shall be assessed at the then current rate.  Any such additional Fees shall be prorated based upon the number of days (out of 365 days) remaining in the term for the Company’s existing Licensed Servers and/or Licensed Users and the term of the additional license(s) shall be coterminous with the existing term.

   4. Invoicing and Payment.

      All payments of fees or charges under this Agreement shall be made in US dollars within fifteen (15) days of the date of the applicable MindTouch invoice unless stipulated otherwise in the associated Order Form.

4. MAINTENANCE AND SUPPORT.

   MindTouch agrees to provide, and Company agrees to pay for, the Maintenance and Services set forth in the applicable Order Form accepted by MindTouch, subject to Company's compliance with the terms hereof.

5. CONFIDENTIALITY. 

   Company agrees, and shall cause its Licensed Users to agree, to maintain the confidentiality of the source code for the Software and Company and MindTouch mutually agree, and Company shall cause its Licensed Users to agree, to maintain the confidentiality of any other proprietary information received by Company from MindTouch, or MindTouch from Company, during, or prior to entering into, this Agreement, including non-public technical and business information ("Confidential Information") during the term of this Agreement and after the termination of this Agreement. This section shall not apply to any publicly available or independently developed information. Both parties agree not to use said Confidential Information for any purpose except as necessary to fulfill their obligations and exercise their rights under this Agreement. Neither party shall disclose the Confidential Information to any third party, and both parties shall protect the secrecy of and avoid unauthorized use of the Confidential Information to the same degree that they protect their own confidential information and in no event less than reasonable care.

6. REPRESNTATIONS AND WARRANTIES.

   1. General Representations and Warranties.

      MindTouch represents and warrants that: (a) it has the authority to enter into this Agreement with Company; and (b) to MindTouch’s knowledge, MindTouch branded Software does not, at the time of delivery to Company, include malicious or hidden mechanisms or code for the purpose of damaging or corrupting the Software.

   2. Disclaimer of Warranty.

      TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE, MAINTENANCE AND SERVICES PROVIDED BY MINDTOUCH ARE PROVIDED AND LICENSED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. MINDTOUCH DOES NOT GUARANTEE THAT THE USE OF THE SOFTWARE WILL NOT BE INTERRUPTED OR ERROR FREE. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND MERCHANTABILITY.

7. LIMITATION OF LIABILITY.

   To the maximum extent permitted by applicable law, IN NO EVENT WILL MindTouch or Company BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT, THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, OR THE USE OF OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES EVEN IF ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. FOR ALL EVENTS AND CIRCUMSTANCES, MINDTOUCH AND COMPANY OR THEIR AFFILIATES’ AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ALL ORDER FORMS WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED THE AMOUNTS RECEIVED BY MINDTOUCH FROM COMPANY DURING TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY, WITH RESPECT TO THE PARTICULAR ITEMS (WHETHER SOFTWARE, SERVICES OR OTHERWISE) GIVING RISE TO LIABILITY UNDER THE MOST APPLICABLE ORDERING DOCUMENT.

8. INDEMNIFICATION.

   1. Defense of Company.

      If a third party claims that Company’s use of the Software as provided to Company infringes any United States patent, copyright, trademark or trade secret, Company must promptly notify MindTouch in writing.  MindTouch shall defend Company against such claim if Company reasonably cooperates with MindTouch and allows MindTouch to control the defense and all related settlement negotiations, and then MindTouch shall indemnify Company from and against any damages finally awarded for such infringement or settlements entered into by MindTouch on Company’s behalf.

   2. Injunctive Relief.

      If an injunction is sought or obtained against Company’s use of the Software as provided to Company as a result of a third party infringement claim, MindTouch may, at its sole option and expense, (i) procure for Company the right to continue using the affected Software, (ii) replace or modify the affected Software with functionally equivalent software so that it does not infringe, or, if either (i) or (ii) is not commercially feasible, (iii) terminate the licenses and refund the Fees received by MindTouch from Company for the affected Software in the twelve (12) months immediately preceding the first event giving rise to liability, with respect to the particular items (whether Software or otherwise) giving rise to liability under the most applicable ordering document.

   3. MindTouch Disclaimer of Liability.

      MindTouch shall have no liability, and shall have no obligation to indemnify Company, for any third party claim of infringement based upon (i) use of other than the then current, unaltered version of the applicable Software, unless the infringing portion is also in the then current, unaltered release; (ii) use, operation or combination of the applicable Software with non-MindTouch programs, data, equipment or documentation if such infringement would have been avoided but for such use, operation or combination; or (iii) any third party software. The foregoing constitutes the entire liability of MindTouch, and Company’s sole and exclusive remedy with respect to any third party claims of infringement of intellectual property rights.

   4. Content Infringement.

      Company shall not permit copyright infringing activities and infringement of intellectual property rights on its website, as well as any illegal, inappropriate, or offending content, and MindTouch or its representatives may remove any Company content if notified that such content infringes on third parties intellectual property rights.  MindTouch and its representatives reserve the right to remove Company content without prior notice.

   5. Indemnification of MindTouch and its Representatives.

      Company agrees to indemnify and hold MindTouch and its representatives, their owners, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to Company Content and Company Submitted Content, including but not limited to any claims regarding inaccurate, offensive, indecent, objectionable or infringing content.  For purposes of this Agreement: “Company Content” means any content Company makes available to its users, “Company Submitted Content” means any and all content created and submitted or imported by Company’s users.

9. TERM AND TERMINATION.

   1. Term and Termination of Agreement.

      The term of this Agreement will begin on the Effective Date and will terminate at the expiration of ninety (90) days following written notice of termination given by one party to the other. Termination of this Agreement will not operate to terminate any Order Form and the terms and conditions of this Agreement will continue in full force and effect to the extent necessary to give effect to any Order Form in effect at the time of termination of this Agreement and until such time as the applicable Order Form expires or is terminated in accordance with Section 9.2 below.  Except as otherwise provided in this Agreement, Company may not terminate an Order Form within the initial term of this Agreement

   2. Term and Termination of Order Form

      1. The term of an Order Form begins on the date the Order Form is executed ("Order Form Effective Date") and continues for the term stated in the Order Form.
      2. If Company materially breaches the terms of an Order Form, and such breach is not cured within thirty (30) days after written notice of the breach is given to Company, then MindTouch may, by giving written notice of termination to Company, terminate the applicable Order Form and/or this Agreement; provided, however, that no cure period will be required for a breach of Section 3 or Section 5 of this Agreement. The termination of an individual Order Form will not terminate any other Order Form or this Agreement unless otherwise specified in the written notice of termination.

   3. Survival.

      If this Agreement or an Order Form is terminated for any reason, Sections 2.3, 3, 5, 6.2, 7, 8, 9.3, and 10 of this Agreement (as the same are incorporated into each Order Form) will survive such termination.

10. GENERAL.

    1. Force Majeure.

       Neither party shall be liable for any delay or failure in performance due to causes beyond its reasonable control.  

    2. Export Compliance.

       Company may not download or otherwise export or re-export the Software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations.

    3. Assignment.

       Neither party may assign this Agreement without the other party’s prior written consent which shall not be unreasonably withheld.  Notwithstanding the foregoing, either party may assign this Agreement without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

    4. Severability.

       If any part of this Agreement is held to be unenforceable, in whole or in part, such holding shall not affect the validity of the other parts of the Agreement.

    5. Waiver.

       The waiver of a breach of any provision of this Agreement shall not operate or be interpreted as a waiver of any other or subsequent breach. 

    6. Notices.

       All notices permitted or required under this Agreement shall be in writing and shall be delivered in person, by FAX, overnight courier service or mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified above or such other address as either party may specify in writing, Attention Office of the General Counsel. Such notice shall be deemed to have been given upon receipt.

    7. Governing Law.

       This Agreement shall be governed by the laws of California, U.S.A., excluding its conflict of law rules and excluding the UN Convention for the International Sale of Goods (CISG). 

    8. Entire Agreement.

       Any amendment or modification to the Agreement must be in writing signed by both parties. This Agreement and the applicable Order Form constitute the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof. Company agrees that (i) any and all Order Forms shall be governed by these standard terms and conditions, and (ii) the appropriate Fees shall be timely paid.  The terms and conditions of this Agreement shall prevail regardless of any preprinted or conflicting terms on Order Forms.  Each of the parties has caused this Agreement to be executed by its duly authorized representatives as of the Effective Date.