MURAL has developed and hosts the Subscription Service (as defined below).
Customer desires to use and MURAL shall provide the Subscription Service on the terms and conditions of this Agreement.
NOW, THEREFORE, the parties agree as follows:
1.1 “Authorized User” means a person who is authorized by Customer to access and use MURAL in accordance with the MURAL Workspace and User System, as more fully defined in Exhibit D.
1.2 “Customer Content” means text, data, graphics, images, photos, drawings, sketches, hypertext links, web content, and any other content uploaded or or stored in the Subscription Service by Customer or an Authorized User.
1.3 “Education Services” means the education and training services to be performed by MURAL to onboard Customer to the Subscription Service, as described in an Order Form.
1.4 “Fees” means the fees described in the current Order Form.
1.5 “Implementation Services” means the services, if any, to be performed by MURAL to configure and implement the Subscription Service to Customer, as described an Order Form.
1.6 “Intellectual Property Rights” means patent rights (including, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.7 “Open Room” means an open area of the Customer Workspace where certain Murals that have been published there can be accessed by all Members of the Customer Workspace.
1.8 “Order Form” means the MURAL Order Form to be used by Customer to order and purchase the Subscription Service.
1.9 “Payment Period” means the period set forth in the Order Form and as otherwise specified in Exhibit D.
1.10 “Private Room” means a private room given to each Member of the Customer Workspace for the creation of their own Murals which they can use to keep private or share with other Authorized Users by invitation.
1.11 “Software” means any MURAL or third-party software used by MURAL to provide the Education Services, the Implementation Services, or the Subscription Service.
1.12 “Subscription Service” means the MURAL software and services as described in the Order Form and more fully described in Exhibit B. The Subscription Service will be provided through the website located at a URL to be provided to Customer (the “URL”). MURAL may change the URL from time to time upon no less than ten (10) days’ written notice to Customer.
1.13 “Term” means the term of this Agreement as defined in Section 9.1.
1.14 “Customer Sourced Personal Data” means any personal data (data that can directly or indirectly, including when used in combination with other data, identify an individual) associated with consumers, Customer employees or workers and/or any Authorized User of a platform used on or behalf of Customer to utilize Mural’s Subscription Service.
2. EDUCATION AND IMPLEMENTATION
2.1 Education and Implementation. MURAL will provide the Education Services and Implementation Services, if any, as described an Order Form.
3. SUBSCRIPTION SERVICE
3.1 Subscription Service License. Subject to Customer’s compliance with this Agreement, commencing on the date in an Order Form and continuing throughout the remainder of the Term, MURAL will provide the Subscription Service in accordance with the service level agreement set forth in Exhibit A (the “Service Level Agreement”) and grants to Customer a worldwide, non-exclusive and non-transferable license to use the Subscription Service. MURAL reserves all rights in the Software and Subscription Service not expressly granted in this Agreement. Customer may use the Subscription Service solely for its business purposes and such use is limited to the number of Memberships for which Customer has paid Fees under the Order Form.
3.2 Customer Content License. For purposes of Customer being authorized to publish a Mural using the Subscription Service, Customer grants to MURAL a worldwide, royalty free, non-exclusive and non-transferable license to use, reproduce, modify, distribute, transmit and display the Customer Content solely in connection with providing the Subscription Service to Customer and fulfilling MURAL’s obligations under this Agreement.
3.3 Restrictions. Customer shall not attempt to interfere with or disrupt the Software or the Subscription Service. Customer shall not allow access or use of the Subscription Service by anyone other than an Authorized User in accordance with the rights and responsibilities of such user. Customer shall not: (a) copy, modify or distribute any portion of the Software or Subscription Service;(b) disassemble, decompile, or reverse engineer the Software or Subscription Service or remove any proprietary notices thereon; (c) rent, lease, or provide access to the Subscription Service on a time-share or service bureau basis; or (d) transfer any of its rights hereunder except as otherwise expressly permitted hereunder.
3.4 Acceptable Use Policies. Customer agrees that MURAL does not monitor or police communications or data transmitted through the Subscription Service and that MURAL shall not be responsible for the content of any such communications or transmissions. Customer shall use the Subscription Service exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. Customer shall not use the Subscription Service to transmit any bulk unsolicited commercial communications. Customer shall keep confidential and not disclose to any third parties, and shall ensure that Authorized users keep confidential and do not disclose to any third parties, any user identifications, account numbers and account profiles. Customer acknowledges that the Subscription Service is not designed, intended or authorized for use in hazardous or mission-critical circumstances or for uses requiring fail-safe performance such as the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control systems or weapons control systems, or where failure could lead to death, personal injury or environmental damage. Customer shall not use the Subscription Service for such purposes or under such circumstances.
3.5 Data Maintenance and Backup Procedures. MURAL shall follow its archival procedures for Customer Content as described in the service level agreement set forth in Exhibit A. In the event of any loss or corruption of Customer Content, MURAL shall use its commercially reasonable efforts to restore the lost or corrupted Customer Content from the latest backup of such Customer Content maintained by MURAL. MURAL shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Content caused by any third party.
4. CUSTOMER OBLIGATIONS
4.1 Cooperation and Assistance. As a condition to MURAL’s obligations, Customer shall: (a) provide MURAL with good faith cooperation and access to such information as may be reasonably required by MURAL in order to provide the Education Services, the Implementation Services, if any, and the Subscription Service.
4.2 Enforcement. Customer shall ensure that all Authorized Users comply with the terms and conditions of this Agreement. Customer shall promptly notify MURAL of any suspected or alleged violation of this Agreement and shall cooperate with MURAL with respect to: (a) investigation by MURAL and (b) any action by MURAL to enforce this Agreement. MURAL may suspend or terminate any Authorized User’s access to the Subscription Service upon notice to Customer in the event that MURAL reasonably determines that such user has violated this Agreement. Customer shall be liable for any violation of this Agreement by any Authorized User.
4.4 Telecommunications and Internet Services. Customer agrees that it’s use of the Subscription Service is dependent upon access to telecommunications and Internet services. Customer shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to use the Subscription Service, including, without limitation, any and all related costs and taxes. MURAL shall not be responsible for any loss or corruption of data, communications, or any other loss or damage arising from such telecommunications and Internet services.
4.5 Copyrighted Materials: No Infringing Use. Customer will not, and will ensure that Authorized Users will not use the Subscription Service to offer, display, distribute, transmit, route, provide connections to or store any Customer Content or any other material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party. In compliance with the safe harbor provision(s) of the Digital Millennium Copyright Act of 1998 (“DMCA”), and further to Customer’s obligations in Section 4.5.3, MURAL reserves the right to take down any and all content posted via use of the Subscription Service at any time in its sole discretion. Customer will assist MURAL with any such compliance activities. Consequently, Customer will:
4.5.1. adopt a policy that complies with the eligibility requirements for the DMCA safe harbors; require Authorized Users to agree to such a policy as a condition for using the Subscription Service; and reasonably enforce and implement said policy;
4.5.2. satisfy all other DMCA requirements for safe harbor eligibility; and
4.5.3. immediately upon receipt of any claims of copyright infringement committed using the Subscription Service (“Notices of Alleged Infringement”) forward such notices to MURAL at email@example.com.
5. FEES; EXPENSES; TAXES
5.1 Fees. In consideration for MURAL providing the Education Services, Implementation Services, if any, and Subscription Service, Customer shall pay to MURAL the Fees set forth in Order Form.
5.2 Other Expenses. Customer shall reimburse MURAL for all pre-approved expenses (including, but not limited to, travel, lodging or shipping and long distance communication only if previously agreed with Customer) incurred by MURAL in performing the Education Services and Implementation Services, if any (collectively, “Expenses”).
5.3 Invoices; Payment; Late Payment. MURAL shall invoice Customer as of the first day of each Payment Period for: (i) Fees and applicable Taxes due in that Payment Period and (ii) Expenses incurred in the previous Payment Period. Each invoice is due and payable thirty (30) days following the invoice date. If MURAL has not received payment within ten (10) days after the due date, interest shall accrue on past due amounts at the rate of one and one half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by MURAL. Customer shall reimburse MURAL for the reasonable costs of collection, including reasonable fees and expenses of attorneys, in case Mural was not successful in resolving the non-payment by working together with the Customer.
5.4 Taxes. All amounts and fees referenced in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, VAT) (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and penalties resulting from any payments made hereunder, other than any taxes based on MURAL’s net income.
6.1 MURAL Ownership. As between MURAL and Customer: (i) the Subscription Service, Software and all data that MURAL collects regarding the use of the Subscription Service (expressly excluding any Customer Content), and all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of MURAL or its licensors, and (ii) the Customer Content and all rights therein, shall remain the exclusive property of Customer or its licensors.
6.2 Customer Ownership. As between Customer and MURAL, Customer retains all right, title, and interest in and to the Customer Content, including any Intellectual Property Rights therein.
7.1 Definition. By virtue of this Agreement, the Parties may have access to each other’s Confidential Information. “Confidential Information,” means any written, machine-reproducible and/or visual materials that are clearly labeled as proprietary, confidential, or with words of similar meaning, and all information that is orally or visually disclosed, if not so marked, if it is identified as proprietary or confidential at the time of its disclosure or in a writing provided within thirty (30) days after disclosure, and any information of any nature described in this Agreement as confidential, or that the receiving party should reasonably understand to be confidential. MURAL Confidential Information includes, without limitation, the Subscription Service and any Software whether in source or executable code, Software and Subscription Service documentation, nonpublic financial information, pricing, business plans, techniques, methods, processes, and the results of any performance tests of the Subscription Service or the Software. Customer Content is the Confidential Information of Customer, provided that if MURAL is instructed by Customer in writing to share or otherwise publish such Customer Content, it shall be entitled to do so. The terms and conditions of this Agreement shall be deemed the Confidential Information of both Parties and neither Party shall disclose such information except to such party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers as have a reasonable need to know such information, provided that any such third parties shall, before they may access such information, either (a) execute a binding agreement to keep such information confidential or (b) be subject to a professional obligation to maintain the confidentiality of such information.
7.2 Exclusions. Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party without reference to other party’s Confidential Information, which independent development can be shown by written evidence.
7.3 Use and Nondisclosure. During the Term and for a period of five (5) years after expiration or termination of this Agreement, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Each party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
8. REPRESENTATIONS AND WARRANTIES
8.1 Mutual Representations. Each Party represents and warrants that: (a) it has all necessary right, power, and authority to enter into this Agreement and to perform the acts required of it; and (b) its performance of this Agreement will comply with all applicable laws and regulations.
8.2 Warranty for Subscription Service. MURAL warrants that the Subscription Service will provide the functionality set forth in Exhibit B, and that MURAL’s delivery of the Subscription Service will meet the requirements set forth in the Service Level Agreement set forth in Exhibit A. Customer’s sole and exclusive remedy for any breach of the warranty set forth in this Section 8.2 will be as set forth in the Service Level Agreement.
8.3 Disclaimer. MURAL: (i) is not responsible for the activities of Customer and Authorized Users; and (ii) has no ability to control the Customer Content that is uploaded, posted or transmitted using the Subscription Service and does not have any obligation to monitor such Customer Content for any purpose and, as a result, is not responsible for the accuracy, completeness, or legality of the Customer Content and disclaims any and all liability in that regard. Customer assumes sole responsibility and liability for results obtained from the use of the Subscription Service. MURAL shall have no liability for any claims, losses, or damage caused by errors or omissions in Customer Content in connection with the Subscription Service or any actions taken by MURAL at Customer’s direction. MURAL shall have no liability for any claims, losses or damages arising out of or in connection with Customer’s use of any third-party products, services, software or websites that are accessed via links from within the Subscription Service. MURAL does not own or operate the third party sites, and MURAL has not reviewed, and cannot review, all of the material, including goods or services, made available through third party sites. The availability of these links on the Subscription Services does not represent, warrant or imply that MURAL endorses any third party sites or any materials, opinions, goods or services available on them. Third party materials accessed through or used by means of the third party sites may also be protected by copyright and other intellectual property laws.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.2, MURAL MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE EDUCATION SERVICES, THE IMPLEMENTATION SERVICES OR THE SUBSCRIPTION SERVICE. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.2, MURAL DISCLAIMS ANY WARRANTY THAT THE SUBSCRIPTION SERVICE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. MURAL FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SUBSCRIPTION SERVICE AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, OR FITNESS FOR A PARTICULAR PURPOSE. MURAL FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MURAL OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
9. TERM AND TERMINATION
9.1 Term. This Agreement will start on the Effective Date and will continue for one (1) year (the “Initial Term”), unless terminated earlier as provided in this Agreement. Except as otherwise expressly set forth in any Order Form(s), Customer may at its option renew the Initial Term by notice to Mural (including by email or other electronic communication) for successive one (1) year periods (or such other time period as may be applicable and set forth in said notice) (each, a “Renewal Term”). The Initial Term and renewal periods are collectively the “Term”.
9.2 Termination for Cause. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach; provided that the cure period for any default with respect to payment shall be five (5) business days.
9.3 Termination for Insolvency. Subject to Title 11 of the United States Code, if any party becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver, or makes an assignment for the benefit of any creditor, then the other party may terminate this Agreement upon thirty (30) days’ written notice.
9.4 Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, Customer’s right to use the Subscription Service will immediately terminate, Customer and its users will immediately cease all use of the Subscription Service, and each Party will return and make no further use of any Confidential Information belonging to the other Party. MURAL will destroy or otherwise dispose of any Customer Content in its possession unless MURAL receives, no later than ten (10) days after the expiration or termination of this Agreement, a written request for the delivery to Customer of the then-most recent backup of the Customer Content. MURAL will deliver the back-up to Customer within thirty (30) days of its receipt of such a written request. Customer will pay all reasonable expenses incurred by MURAL in returning Customer Content to Customer.
9.5 Survival. The rights and obligations of MURAL and Customer contained in Sections 5 (Fees, Expenses and Taxes), 6 (Ownership), 7 (Confidentiality), 9.4 (Rights and Obligations Upon Expiration or Termination), 9.5 (Survival), 10 (Indemnification), 11 (Limitation of Liability), 12 (Acknowledgement), and 13 (General) shall survive any expiration or termination of this Agreement.
10.1 Indemnification by MURAL. MURAL shall indemnify, defend (or settle) any suit or action brought against Customer to the extent it is based upon a claim that the Subscription Service infringes the Intellectual Property Rights of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that is awarded against Customer. MURAL’s obligations under this Section 10.1 are contingent upon: (a) Customer providing MURAL with prompt written notice of such claim; (b) Customer providing reasonable cooperation to MURAL, at MURAL’s expense, in the defense and settlement of such claim; and (c) MURAL having sole authority to defend or settle such claim. In the event that MURAL’s right to provide the Subscription Service is enjoined or in MURAL’s reasonable opinion is likely to be enjoined, MURAL may either; i) obtain the right to continue providing the Subscription Service; ii) replace or modify the Subscription Service so that it becomes non-infringing, or, if such remedies are not reasonably available, terminate this Agreement without liability to Customer and refund amounts paid by Customer to MURAL in the same year in which the intellectual property infringement occurred. THE FOREGOING STATES THE ENTIRE OBLIGATION OF MURAL AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SUBSCRIPTION SERVICES. MURAL shall have no liability under this Section 10.1 to the extent that any third-party claims are based on use of the Subscription Service in a manner that violates this Agreement or the instructions given to Customer by MURAL.
11. LIMITATION OF LIABILITY
EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 7, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.
EXCEPT FOR A BREACH OF ANY OF SECTIONS, 3.3, 3.4, 7, OR MURAL’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S ACCESS TO AND USE OF THE SUBSCRIPTION SERVICE EXCEED THE TOTAL MONTHLY SUBSCRIPTION FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
The Parties acknowledge that the limitations and exclusions contained in Section 11 and elsewhere in this Agreement have been the subject of negotiation and represent the Parties’ agreement based upon the perceived level of risk associated with their respective obligations under this Agreement, and the payments made hereunder. Without limiting the generality of the foregoing, the Parties acknowledge and agree that (a) the provisions hereof that limit liability, disclaim warranties or exclude consequential damages or other damages or remedies shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach hereunder, and (b) all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose.
13.1 Governing Law. This Agreement and all matters arising out of or relating to it will be governed by the laws of the State of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement will be brought exclusively in the state or federal courts located in the Northern District of California. MURAL and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
13.2 Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
13.3 Notices. All notices required to be sent under this Agreement will be in writing and will be sent to the addresses set forth in the Order Form or delivered in person. The notices will be deemed given upon: (a) the date actually delivered in person; (b) the day after the date sent by overnight courier; or (c) three (3) days following the date such notice was mailed by first class mail. Notices may be confirmed by email or fax.
13.4 Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
13.5 Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations under this Agreement (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation, denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations affected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
13.6 Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
13.7 Relationship Between the Parties. Nothing in this Agreement will create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
13.8 Assignment/Successors. Neither party may assign or transfer this Agreement, in whole or in part, without the other party’s written consent except in the event of a Change of Control (as defined below). Any attempted assignment or transfer in violation of this Section will be null and void. “Change of Control” means, with respect to a party: (a) the direct or indirect acquisition of either (i) the majority of voting stock of such party or (ii) all or substantially all of the assets of such party, by another entity in a single transaction or a series of transactions; or (b) the merger of such party with another entity. Subject to the foregoing restrictions, this Agreement shall inure to the benefit of the successors and permitted assigns of the parties.
13.9 Entire Agreement. This Agreement together with its Exhibits and the Order Form constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by an authorized representative of each party.
13.10 Non-Exclusive Remedies. Except as set forth in Section 3.5 and in the Service Level Agreement, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement.
13.11 Equitable Relief. Each Party acknowledges that a breach by the other Party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
13.12 No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories. Only the Parties to this Agreement may enforce it.
13.13 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which shall constitute one and the same instrument.
13.14 Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.
SERVICE LEVEL AGREEMENT
1. Subscription Service
The Subscription Service will meet the following service level standards:
1.1 Hosting Facility. The hosting equipment will be installed on MURAL premises or in a professional hosting facility designed for such use. The facility will be equipped with access security, climate control, fire suppression, managed power supply with UPS, and generator backup.
1.2 Load Distribution Management. MURAL will provide load balancing services to distribute load and redundancy across application servers.
1.3 Monitoring Services. MURAL will provide 24x7x365 monitoring of the computing, operating and networking infrastructure to detect abnormalities. This includes environmental monitoring, network monitoring, load balancing monitoring, web server and database monitoring, firewall services, and intrusion detection.
1.4 Backup, Archiving and Recovery Services. MURAL will perform regular backups of Customer Content, and provide routine and emergency recovery of Customer Content from its archives. The backup schedule will include at least weekly full backups and daily incremental backups. In the event of loss or corruption of Customer Content, MURAL will use reasonable commercial efforts to restore such Customer Content based on its most recent backup.
1.5 Administration Services. MURAL will provide installation and administration of additional hardware, operating systems and other software, equipment and resources as necessary to maintain the Subscription Service.
2. Service Availability
2.1 Uptime Requirement: The Subscription Service will be available and accessible by Customer at least 99.5% of the time as measured on a monthly basis during the Term, excluding (i) Planned Downtime, and (ii) downtime that is caused by: (a) Customer’s telecommunications and Internet services, (b) software or hardware not provided and controlled by MURAL (including third-party software or sites that are accessed or linked through the Subscription Service), or (c) Force Majeure Events (“Uptime Requirement”). Reports on Service availability may be accessed by Customer 24x7x365 on https://status.mural.co
2.2 Planned Downtime: For purposes of this Agreement, “Planned Downtime” will mean MURAL’s regularly scheduled maintenance windows for the Subscription Service which (a) Customer has been notified of in writing reasonably in advance, (b) shall take place no more than (i) one (1) hour per night starting at 5 AM UTC, for daily maintenance and (ii) three (3) hours per month, only on Saturdays or Sundays, between the hours of 5 AM and 9 AM UTC of monthly maintenance and (c) will in no event exceed five (5) hours per month in the aggregate.
3. Support Services
3.1 Requirement. MURAL will (a) respond to almost all electronic correspondence (whether chat or email ) received from Customer on support issues regarding the Subscription Service within two (2) hours of receipt; and (b) make available a representative to receive telephonic correspondence, in each case, during the hours from 11:00 AM UTC and 11:00 PM UTC Monday through Friday (collectively, the “Support Services Requirement”).
SUBSCRIPTION SERVICE DESCRIPTION
The Subscription Service includes the following:
DATA USAGE AND PROTECTION – ADMINISTRATIVE ACCESS
Customer understands and agrees that MURAL may use Customer Sourced Personal Data as specified herein or elsewhere in communications to Customer, Customer’s affiliates, employees or representatives, and to provide access to Mural’s Subscription Service (for example, by means of login credentials). Such Customer Sourced Personal Data may fall within the following categories of data: identity and contact information regarding Customer employees and contingent workers.
Customer Sourced Personal Data shall be used only for purposes related to the performance of this Agreement, including but not limited to communications, payment administration, task allocation, training, and the provision and control of access and use of MURAL’s facilities and tools. Due to the global nature of MURAL’s organization, Customer Sourced Personal Data may be transferred to and stored in a global database and processed by Customer’s relevant employees and affiliates as well as subcontractors who may be located in the United States or elsewhere in countries which have different data protection standards. MURAL will take appropriate measures to ensure that Customer Sourced Personal Data is stored securely and in conformity with applicable data protection laws and MURAL’s own data protection policies. In particular, MURAL will provide data subjects with access to personal data relating to them as provided under applicable laws.
EXHIBIT D-1 - BILLING
Membership is the unit of value associated with a Workspace. For every Membership, there may be one (1) concurrent Member of a Workspace. Customers pay for the number of Memberships associated with a Workspace.
Guests. Customers don’t pay for Guests.
Membership True Up
If at the end of a quarterly billing cycle the number of Members exceeds the number of Memberships, an Administrator must either: i) increase the number of Memberships to equal or exceed the number of Members; or ii) an Administrator can choose to deactivate Members so that they do not exceed the number of Memberships available. An Administrator must make this decision no later than seven (7) days after the end of the most recent quarterly billing cycle. Any new Membership added to the Workspace will have an effective start date as of the first day of the new quarterly billing cycle and will run through to the end of the current annual billing cycle. New Memberships will be billed in advance pro rata for the remainder of the annual billing cycle.