This Beta Agreement (this "Agreement"), is a binding agreement between MUNICH RE AMERICA SERVICES, INC., a Delaware corporation with a principal office located at 555 College Road East, Princeton, NJ 08540 ("MRAS") and the person(s) (including legal entities) that indicate acceptance of the terms of this Agreement by clicking the “SIGN UP” button. ("Customer").
BY CLICKING THE "SIGN UP" BUTTON YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT CUSTOMER IS A CORPORATION OR OTHER LEGAL ENTITY AND THE PERSON ENTERING INTO THIS AGREEMENT HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND TO BIND CUSTOMER TO ITS TERMS. MRAS PROVIDES ACCESS TO A PROPRIETARY CLOUD BASED BUSINESS RISK MANAGEMENT PLATFORM THAT IT IS DEVELOPING AND IMPROVING (THE “PLATFORM”) AND ASSOCIATED SERVICE OFFERINGS (THE “SERVICES”) (THE SERVICES AND PLATFORM ARE COLLECTIVELY THE “MRAS OFFERING”) SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, MRAS WILL NOT AND DOES NOT GRANT ANY RIGHTS TO THE MRAS OFFERING AND YOU MUST NOT ACCESS NOR USE THE MRAS OFFERING.
2.1. Customer shall not, and shall require its Users not to, directly or indirectly, do any of the following:
2.1.1. use the MRAS Offerings in violation of any law, regulation or rule;
2.1.2. use the MRAS Offering for purposes of competitive analysis of the MRAS Offering, or the development of a competing product or service or otherwise use the MRAS Offering for any use beyond the scope granted in Section 1;
2.1.3. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Platform or any part thereof;
2.1.4. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Platform;
2.1.5. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the MRAS Offering, or any features or functionality thereof, to any third party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service; or
2.1.6. modify, copy, disclose, adapt, or make derivative works of the Platform.
2.2. Customer shall not, and shall require its Users not to, do any of the following:
2.2.1. upload or submit to the Platform or otherwise provide MRAS with any information, data or materials that includes any information that relates, describes, identifies or is reasonably capable of being associated with or could reasonably be linked, directly or indirectly, to a particular individual (“Consumer Information”); or
2.2.2. upload or submit to the Platform or otherwise provide MRAS with any information, data or materials, including documents such as contracts, of a third party that is subject to an obligation of confidentiality (“Confidential Third Party Materials”) unless Customer has received permission from such party to disclose Confidential Third Party Materials to MRAS, whether directly or through use of the Platform.
2.3. Customer acknowledges and agrees that Consumer Information includes Sensitive Data (as hereinafter defined). Sensitive Data means: (a) any information that requires protection by law and where loss or unauthorized disclosure, use or access thereof would require Customer or MRAS to notify governmental agencies, individuals or law enforcement, and (b) any information, that if made public, would expose individuals to a risk of physical harm, fraud, or identity theft. Sensitive Data includes, but is not limited to, social security numbers, financial account numbers, credit card or debit card numbers, CVVs, credit report information or other personal financial information, health or medical information or other information that is subject to federal, state or local laws or ordinances now or hereafter enacted regarding data protection or data privacy. MRAS has no responsibility or liability with respect to Sensitive Data.
2.4. In the event that use of the Platform as granted in this Agreement requires Customer or a User to upload or submit to the Platform any information, data, documents or other materials that contains any Consumer Information or Confidential Third Party Materials, Customer shall redact all Consumer Information and/or Confidential Third Party Materials prior to uploading or submitting the information, data, documents or other materials to the Platform. Without derogating the foregoing, in the event that fails to comply with its obligation as set forth in the preceding sentence, Customer shall provide MRAS with prompt notification of such so that MRAS may remove Consumer Information and/or Confidential Third Party Materials from the Platform.
3. DEVELOPMENT AND DATA.
3.1. Feedback. During the course of the development and improvement of the MRAS Offering, Customer shall test the MRAS Offering as directed by MRAS and shall also regularly provide feedback regarding the MRAS Offering to MRAS as requested by MRAS (the “Feedback”). Feedback includes the results of any internal analysis, testing and the general experience of Customer with respect to the MRAS Offering, and other areas as reasonably requested by MRAS. Customer hereby assigns all of its right, title and interest in and to any intellectual property in any Feedback provided to MRAS. Customer shall execute, and cause its Users, to execute documentation to evidence or perfect MRAS’s rights, title and interest in the Feedback as may be requested by MRAS from time to time.
3.2. Analyzed Data. Customer may provide to MRAS (whether or not through the MRAS Offering) information, data, materials and documents to enable Customer’s use of the MRAS Offering (the “Analyzed Data”). Customer represents and warrants that it owns or licenses the Analyzed Data. Customer hereby grants MRAS a perpetual, irrevocable, worldwide, royalty-free license to use, access, copy, download, and disseminate Analyzed Data and to create derivative works based on Analyzed Data, in each case in connection with the development, improvement, provision of, support of, and commercialization and exploitation of, the MRAS Offering, including, but not limited to, for general commercial purposes. MRAS’s license to Analyzed Data is subject to MRAS’s obligations as set forth in Section 7. Customer further represents and warrants that it has the right and authority to grant MRAS the rights to Analyzed Data as set forth in this Section 3.2.
4. MRAS EVALUATION. As part of the Services, MRAS may evaluate the Analyzed Data to provide Customer with additional insight on the Analyzed Data (the “MRAS Evaluation”). Customer shall not use the MRAS Evaluation for any purpose that is covered under the Fair Credit Reporting Act, 15 U.S.C. § 1681.
5. OWNERSHIP OF THE MRAS OFFERING.
5.1. In General. Customer acknowledges and agrees that MRAS owns the MRAS Offering and all intellectual property rights therein. MRAS retains all right, title and interest in and to the MRAS Offering and all intellectual property rights therein. Customer shall not take any actions inconsistent with MRAS’s right, title, and interest in and to the MRAS Offering or the intellectual property rights therein. Customer does not acquire any right, title, or interest in or to the MRAS Offering, including any ownership interest in any element, segment or component of the MRAS Offering, other than the rights expressly set forth in this Agreement. Customer hereby assigns to MRAS all of Customer’s right, title and interest in all intellectual property relating to the MRAS Offering and its functionality that Customer may have. Customer shall execute, and cause its Users to execute, documentation to evidence MRAS’s interest as a consequence of the assignment described in the preceding sentence.
5.2. Improvements and Data. Without in any way limiting the generality of Section 5.1, Customer acknowledges and agrees that MRAS is the sole owner of all right, title and interest (i) in and to all improvements to the MRAS Offering, including without limitation, any improvements made as a result of Feedback, and (ii) all data generated by the MRAS Offering, including the MRAS Evaluation.
6. RESPONSIBILITY FOR USE OF THE PLATFORM. Customer is responsible and liable for all uses of the Platform through access thereto provided by Customer, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Customer is responsible and liable for all actions and failures to take required actions with respect to the Platform by its Users or by any other third party to whom Customer or a User may provide access to or use of the Platform, whether such access or use is permitted by or in violation of this Agreement.
7.1. Confidential Information. Each party agrees that in order to further the performance of this Agreement, a party to this Agreement (the “Discloser”) may disclose to the other party (the “Receiver”) certain confidential or proprietary information that is designated as confidential or proprietary or that may reasonably be considered confidential or proprietary at the time of disclosure (“Confidential Information”). Without limiting the foregoing, the MRAS Offering, all information related to the MRAS Offering, and the Feedback constitutes MRAS’s Confidential Information and the Analyzed Data constitutes the Customer’s Confidential Information.
7.2. Protection of Confidential Information. T
he Receiver shall protect the confidentiality of Discloser’s Confidential Information with at least the same degree of care that it utilizes with respect to its own similar confidential information, but in no event less than reasonable and customary care for such information. More specifically, Receiver shall:
(a) not disclose or otherwise permit any other person or entity access to, in any manner, any Confidential Information, or any part thereof in any form whatsoever, except that such disclosure or access is permitted to employees and third parties of the Receiver (the “Representatives”) who have a need to know to such Confidential Information in connection with the Receiver’s rights or obligations under this Agreement and who are bound to maintain the confidentiality obligations that are at least as restrictive as the obligations in this Section 7;
(b) use reasonable care to safeguard Confidential Information and to prevent the unauthorized use or disclosure thereof, which care shall not be less than that used by the Receiver to protect its own confidential and proprietary information, including implementing and maintaining information system security measures and controls to protect the confidentiality of the Confidential Information that shall, at minimum, comply with reasonable best practices for the relevant industry; and
(c) not to use the Discloser’s Confidential Information for any purpose other than as explicitly set forth in this Agreement.
7.3. Exceptions. The obligations of confidentiality stated herein shall not apply to any information that: (1) is or becomes available to the public, other than as a result of an impermissible disclosure by the Receiver, (2) was or becomes available lawfully to the Receiver from a source other than the Discloser, which to the Receiver’s knowledge, is not subject to a confidentiality obligation, (3) was developed independently by the Receiver prior to disclosure by the Discloser, as demonstrated by the Receiver’s records, or, (4) is required to be disclosed by law, regulation, court or regulatory agency action.
7.4. Return or Destruction. Except with respect to Analyzed Data, upon the expiration or earlier termination of this Agreement, or upon Discloser’s request, Receiver shall return or destroy, Discloser’s Confidential Information and all items derived from such Confidential Information which are in the possession of the Receiver or its Representatives, including all copies thereof which may have been made by or on behalf of Receiver or its Representatives, except for such copies as may be required to be retained by applicable law. Any copies of Confidential Information that are retained due to a requirement under applicable law remains subject to Section 7 for as long as such information is retained. In the event that Receiver is directed to destroy such materials, it shall certify in writing to Discloser that it has done so.
7.5. Customer acknowledges and agrees that Section 7.2 (a) does not in any way expand the scope of the grant as described in Section 1.
8.1. Term. This Agreement commences on the date of Customer’s acceptance of this Agreement, INDICATED BY CLICKING THE “I ACCEPT” BUTTON, and continues for a term of one (1) year, subject to automatic renewals in one year increments until terminated in accordance with the terms of this Section 8.
8.2. Termination By Either Party. This Agreement may be terminated by either party at any time for any or no reason upon providing not less than fourteen (14) days advance written notice to the other party.
8.3. Termination for Cause. MRAS may terminate this Agreement, effective upon written notice to Customer, if Customer materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured five (5) days after MRAS provides written notice of the material breach. MRAS may also terminate this Agreement, effective immediately, if Customer files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
8.4. Effect of Termination. Upon termination, Customer and Users shall immediately cease use of the MRAS Offering and delete or destroy Confidential Information in accordance with Section 7.4.
9. DISCLAIMER OF WARRANTY/LIMITATION OF LIABILITY.
9.1. DISCLAIMER. THE MRAS OFFERING IS BEING PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND. MRAS HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WHETHER ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE MRAS OFFERING, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE, SECURITY, INFORMATIONAL CONTENT, NON-INTERFERENCE OR THAT THE MRAS OFFERING IS ERROR-FREE OR FREE FROM DEFECTS, VIRUSES, WORMS OR OTHER HARMFUL COMPONENTS. WITHOUT LIMITING THE FOREGOING, CUSTOMER ACKNOWLEDGES AND AGREES THAT MRAS IS NOT LIABLE FOR ANY DAMAGES RESULTING FROM ANY USE OF THE MRAS OFFERING OR ANY RESULTS THEREOF FOR ANY PURPOSE. THE MRAS OFFERING PROVIDES CONTRACT ANALYSIS AND RECOMMENDATIONS, BUT DOES NOT PROVIDE LEGAL ADVICE. CUSTOMER SHALL NOT RELY ON THE MRAS OFFERING OR ANY RESULTS THEREOF AS LEGAL ADVICE. THE MRAS OFFERING IS NOT OFFERED BY ATTORNEYS OR OTHER LEGAL PROFESSIONALS OF ANY KIND. USE OF THE MRAS OFFERING DOES NOT ESTABLISH A CLIENT/ATTORNEY RELATIONSHIP. CUSTOMER IS ADVISED TO CONSULT AN ATTORNEY FOR LEGAL ADVICE. CUSTOMER IS RESPONSIBLE FOR INDEPENDENTLY DETERMINING THE APPROPRIATENESS OF ANY ANALYSIS AND RECOMMENDATIONS. CUSTOMER ADOPTS OR FOLLOWS RECOMMENDATIONS AT ITS OWN RISK, AND IS RESPONSIBLE FOR ALL OUTCOMES ARISING FROM OR IN CONNECTION WITH THE USE OF THE PLATFORM AND ITS ADOPTION OR FOLLOWING OF ANY RECOMMENDATIONS.
9.2. EXCLUSION OF DAMAGES. IN NO EVENT WILL MRAS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE MRAS OFFERINGS; (C) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA; (D) COST OF REPLACEMENT SERVICES; (E) LOSS OF GOODWILL OR REPUTATION; OR (F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
9.3. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF MRAS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED $100. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10. INDEMNIFICATION. Customer shall indemnify, defend, and hold MRAS, its affiliates and their respective officers, employees, and agents (“MRAS Indemnitees”) from and against all losses, damages, claims, liabilities, and expenses (including reasonable attorneys' fees and costs), whether based in contract or tort (including strict liability) asserted by a third party or otherwise incurred by any MRAS Indemnitee, to the extent arising out of or related to any one or more of the following: (a) Customer’s or its User’s failure to abide by the terms of this Agreement, including, but not limited to, a violation of the prohibition against any Consumer Information or Confidential Third Party Materials being provided to MRAS or uploaded or submitted to the Platform; (b) breach of any Customer representation or warranty set forth in this Agreement, (c) any negligent act or omission by Customer or its Users arising directly or indirectly under this Agreement; (d) Customer’s or its Users’ use of the Platform or any information accessed or used through the Platform; or (e) any third party claim of infringement caused by Customer’s or its User’s access to or use of the Platform in combination with software not supplied or approved by MRAS if such claim would not have occurred in the absence of the foregoing. This Section 10 survives the expiration or earlier termination of the Agreement.
11. DATA COLLECTION.
11.1. Customer acknowledges that MRAS may, directly or indirectly through the services of third parties, collect and store information regarding use of the MRAS Offering and about equipment on which the MRAS Offerings is accessed and used. Customer agrees that MRAS may use such information for any purpose related to any use of the MRAS Offering by Customer or on Customer’s equipment, including but not limited to (i) improving the performance of the Platform or developing updates thereto, (ii) verifying Customer’s compliance with the terms of this Agreement, and (iii) enforcing MRAS’s rights, in and to the MRAS Offering.
12. COMPLIANCE. Customer shall comply with all applicable laws, regulations and rules in connection with its use of the MRAS Offering.
13. GENERAL PROVISIONS.
13.1. Waiver. The failure of either party to this Agreement to enforce any rights granted under this Agreement or to take action against the other party to this Agreement in the event of breach does not constitute a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
13.2. No Third Party Beneficiary. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or confers on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
13.3. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby must be instituted in the federal courts of the United States of America or the courts of the State of New Jersey in each case located in the Mercer County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth in this Agreement is be effective service of process for any suit, action, or other proceeding brought in any such court.
13.4. Entire Agreement. This Agreement, together with all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between MRAS and Customer with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
13.5. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
13.6. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without MRAS’s prior written consent, which consent MRAS may give or withhold in its sole discretion. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 13.6 is void.
13.7. Export. The Platform may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. The Customer shall not, directly or indirectly, export, re-export, or release the Platform or related documentation to, or make the Platform or related documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. The Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Platform or related documentation available outside the US.
13.8. Advertising. Neither party shall reproduce or use the names, logos, service marks or trademarks of the other party in advertising, marketing material, press release or otherwise without the express written permission of such other.
13.9. No Construction Against Drafter. The parties represent that they have read and understand the terms and conditions of this Agreement and acknowledge and agree that any construction of this Agreement shall not be made against the drafter of the Agreement.
13.10. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
13.11. Electronic Signatures. Each party agrees that this Agreement may be accepted or signed electronically, and that any indication of acceptance or assent delivered electronically (including but not limited to pressing an “SIGN UP” button appearing on in connection with this Agreement) is the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.