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This Agreement governs Client’s acquisition and use of the Maavee Service. The parties hereby agree as follows:
“Active User” means an Authorized User that has accepted the User Terms, successfully completed the account activation process, has access to the Maavee Service whether or not such user actually accesses the Maavee Service, and for which Client may pay a Subscription Fee for the Subscription Term depending on the number of Active Users and use case as designated in the Subscription Order.
“Administration Console” means the Maavee Service functionality available to Client to administer the Maavee Service, including the features and functions available to manage Active Users and Authorized Users, authorize funds to be disbursed to User Wallets, and access available reports.
“Affiliate(s)” means any person, firm, trust, partnership, corporation, company or other entity or combination thereof, which directly or indirectly, Controls the subject entity, is Controlled by the subject entity, or is under common Control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.
“Aggregate Data” means all anonymous, aggregated data, statistics, and other information generated by the Maavee Service which may include Client Data, User Data and data collected through the Maavee App, provided that no such information will directly identify and cannot reasonably be used to identify Client or Client’s users.
“Authorized Reseller” means a Maavee reseller that is in good standing with Maavee under a fully-executed Maavee reseller agreement and is associated with a Subscription Order under this Agreement.
“Authorized User” means employees, contractors, or other individuals specifically designated by Client to access the Maavee Service by loading the required Client Data through the Administration Console or by requesting that Maavee load such data on Client’s behalf. Client may load an unlimited number of Authorized Users, and such users are not subject to Subscription Fees.
“Brand Partner” means suppliers or providers with which Maavee has, at its sole discretion, entered into an agreement to resell Brand Partner Products.
“Brand Partner Products” or “BPP” means Brand Partner’s products or digital services selected by Maavee to be available for resale to Client Users through the Maavee Service.
“Client Administrator” means an individual authorized by the Client to access the Administration Console, manage the Maavee Service, and to approve transactions on behalf of Client such as adding Authorized Users and disbursing Maavee Cash.
“Client Bank Account” has the meaning ascribed to it in Section 4.4.
“Client Data” means all electronic data or information submitted by or on behalf of Client to the Maavee Service, excluding Content, User Data and Non-Maavee Applications. Client Data includes but is not limited to email addresses of Authorized Users and disbursements of Maavee Cash by Client to User Wallets.
“Content” means information made available as part of the Maavee Service that is either (i) developed by Maavee, (ii) obtained by Maavee from publicly available sources, or (iii) or secured from third-party providers or partners for which Maavee is authorized to distribute.
“Documentation” means any then-current guides, manuals, online or inline help that Maavee makes generally available to describe the use and operation of the Maavee Service to Clients, Authorized Users, and Active Users.
“Maavee App” means the Maavee software application that provides access to the Maavee Service to Active Users subject to the User Terms and stored on a User Device.
“Maavee Cash” means funds that are made available to the User Wallets of Authorized Users or Active Users and for which the Maavee Cash specifically authorized by Client shall be billed to Client as set forth in Section 4.1(b).
“Maavee Service” means the generally available web-based, online, hosted software including, without limitation, all corrections, updates, modifications, releases, versions, and enhancements to such software that Maavee generally releases to its Clients and Active Users including those designated to be a Premium Feature, and the Administration Console. The Maavee Service excludes Non-Maavee Applications and Brand Partner Products.
“Malicious Code” means viruses, worms, time bombs, Trojan horses, malware, and other harmful or malicious code, files, scripts, agents, or programs.
“Non-Maavee Application” means any third-party web-based, mobile, offline, or other software application or functionality that interoperates with Maavee’s software and technology, selected by Maavee at its sole discretion, to deliver the Maavee Service.
“Partner Bank” has the meaning ascribed to it in Section 4.4.
“Payee” has the meaning ascribed to it in Section 4.4.
“Premium Feature” means a feature that may be released from time to time that is included in the Maavee Service, for which there is an additional Subscription Fee, and that Maavee shall communicate to Client in advance of any such feature. Client is under no obligation to subscribe to a Premium Feature.
“Professional Services” has the meaning ascribed to it in Section 2.9.
“Subscription Fees” means the amount that Client shall pay to Maavee for access to the Maavee Service during the Subscription Term which shall be billed as set forth in Section 4.1(b).
“Subscription Order” means a mutually agreed upon authorization made by Client to purchase the Maavee Service for Active Users initiated through the Administration Console or by request directly to Maavee. Subscription Orders are incorporated into and a part of this Agreement.
“Subscription Term” means the period of time Client may use the Maavee Service beginning on the Subscription Order Date set forth in the appliable Subscription Order.
“Support Services” has the meaning ascribed to it in Section 2.8.
“Term” means the duration of the Agreement during which the Client may offer the Maavee Service to new
“Terminated User” means any Active User that is deactivated by or at the request of the Client and for which Client shall no longer pay Subscription Fees. Any Maavee Cash balance in the User Wallet at the time of deactivation of an Active User shall remain with the Terminated User for use beyond association with the Client. Terminated Users shall continue to have access to the Maavee Service and shall no longer be governed by this Agreement but rather by the individual User Terms.
“User Data” means information collected by Maavee from Authorized Users or Active Users through the Maavee Service. User Data may include, without limitation, name, birthdate, profile picture, personal email address, mobile phone number, billing address, shipping address, and activity.
“User Device” means the smartphone (e.g., iPhone or Android) owned or controlled by an Active User on which the Maavee App is stored.
“User Terms” means the contract governing access and use of the Maavee Service including terms of use, privacy policies, customer policies, and any disclaimers.
“User Wallet” means the virtual wallet functionality of the Maavee Service that holds the Maavee Cash and that tracks Maavee Cash inflows, outflows and balances.
2.1 Maavee Service. Subject to the terms and conditions of this Agreement, Maavee will provide to Client (including its Client Administrators, its Authorized Users, and its Active Users) during each Subscription Term a non-exclusive and nontransferable (except as set forth in Section 12.3 below) right to (a) access and use of the Maavee Service via the internet, (b) use the Documentation, and (c) access support from Maavee. Client’s purchase of the subscription to the Maavee Service is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by Maavee with respect to future functionality or features. Access to the Maavee Service shall be provided as follows:
(a) Maavee App. Maavee will invite Authorized Users via a one-time-use link sent to the email address provided by Client to use the Maavee Service. Authorized Users must complete the account activation process to become an Active User. Access to and use of the Maavee Service is conditioned upon Authorized User’s acceptance of the User Terms. Client acknowledges and agrees that Authorized Users who do not agree to the User Terms will not be able to use the Maavee Service to which Client subscribes hereunder. Upon successful completion of the account activation process, the Active User must download the Maavee App to the User Device in order to access to the Maavee Service, which includes features and functionality such as Content, the User Wallet, and a marketplace of BPP that may be purchased using funds in the User Wallet and/or Active User’s own money, among other features and functions. All such features and functions are subject to change from time to time by Maavee in Maavee’s sole discretion. Active User’s purchase of any BPP may be subject to Active User’s acceptance of the Brand Partner’s terms and conditions. Maavee shall not be liable for any breach of such terms by the Brand Partner or for any failure or delay to provide Brand Partner’s BPPs.
(b) Administration Console. Client Administrators will have the ability to administer the Maavee Service via a browser-based, online portal constrained only to Client and Client Data. The Administration Console will provide the ability to manage users, manage Maavee Cash, and view reports. Until such time when the Administration Console is available to Client, all such administration will be performed by Maavee on behalf of Client.
2.2 Restrictions. The rights granted in Section 2.1 above are conditioned upon Client’s compliance with the terms and conditions of this Agreement. Client may use the Maavee Service for Client’s own internal business purposes, in compliance with applicable law. Client shall not: (a) permit any third party organization to access the Maavee Service except as permitted herein, (b) license, sublicense, sell, resell, rent, lease, transfer, distribute, use the Maavee Service for commercial time sharing, outsourcing or otherwise commercially exploit the Maavee Service; (c) create derivative works based on the Maavee Service; (d) modify, reverse engineer, translate, disassemble, or decompile the Maavee Service, or cause or permit others to do so; (e) copy, frame or mirror any content forming part of the Maavee Service, other than on Client’s own intranets or otherwise for Client’s own internal business purposes; (f) access the Maavee Service in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the Maavee Service; and (g) remove any title, trademark, copyright and/or restricted rights notices or labels from the Maavee Service.
2.3 Free Trial. If Client registers for a free trial, Maavee will make the Maavee Service available to Client on a trial basis free of charge until the earlier of (a) the end of the free trial period for which the Client registered to use the applicable Service(s); (b) the start date of any Maavee Service subscriptions purchased by the Client; or (c) termination by Maavee or Client at either party’s sole discretion. Additional trial terms and conditions may be applicable to any such free trial and shall be agreed upon by the parties. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
2.4 ANY DATA ENTERED INTO THE MAAVEE SERVICE BY A CLIENT, AN AUTHORIZED USER, OR AN ACTIVE USER DURING A FREE TRIAL WILL BE PERMANENTLY LOST UNLESS THE CLIENT PURCHASES A SUBSCRIPTION TO THE SAME MAAVEE SERVICE AS THOSE COVERED BY THE TRIAL OR PURCHASES THE APPLICABLE UPGRADED MAAVEE SERVICE BEFORE THE END OF THE TRIAL PERIOD.
2.5 NOTWITHSTANDING SECTIONS 7 (REPRESENTATIONS AND WARRANTIES) AND 8 (LIMITATION OF LIABILITY), DURING THE FREE TRIAL THE MAAVEE SERVICE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND MAAVEE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE MAAVEE SERVICE FOR THE FREE TRIAL PERIOD. WITHOUT LIMITING THE FOREGOING, MAAVEE, ITS AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CLIENT THAT: (A) CLIENT OR USER’S USE OF THE MAAVEE SERVICE DURING THE FREE TRIAL PERIOD WILL MEET THE CLIENT’S REQUIREMENTS, (B) CLIENT’S USE OF THE MAAVEE SERVICE DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 8 (LIMITATION OF LIABILITY), CLIENT SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO MAAVEE AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CLIENT’S USE OF THE MAAVEE SERVICE DURING THE FREE TRIAL PERIOD, ANY BREACH BY CLIENT OF THIS AGREEMENT AND ANY OF CLIENT’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
2.6 Non-Maavee Products and Services. Maavee or third parties may make available third-party products or services, including, for example, Non-Maavee Applications and implementation and other consulting services. Any acquisition by Client of such products or services, and any exchange of data between Client and any Non-Maavee provider, product or service is solely between Client and the applicable Non-Maavee provider. Maavee does not warrant or support Non-Maavee Applications or other Non-Maavee products or services, whether or not they are designated by Maavee as “certified” or otherwise, unless expressly provided otherwise in a Subscription Order. Maavee is not responsible for any disclosure, modification or deletion of Client Data resulting from access by such Non-Maavee Application or its provider.
2.7 Integration with Non-Maavee Applications. The Maavee Service may contain features designed to interoperate with Non-Maavee Applications. Maavee cannot guarantee the continued availability of such Maavee Service features and may cease providing them without entitling Client to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Maavee Application ceases to make the Non-Maavee Application available for interoperation with the corresponding Maavee Service features in a manner acceptable to Maavee.
2.8 Support. During the Subscription Term, and at no additional charge to the Client, Maavee will provide Client with the standard level of support indicated at the following URL, which corresponds to the Maavee Service purchased by Client: at https://gomaavee.com/clientsuccess (the “Support Services“). Maavee reserves the right, from time to time, to make modifications to the Support Services or components of the Support Services and will use commercially reasonable efforts to notify Client of any material modifications by either written communication to Client or posting a notice of the modification at the URL noted above. Receipt of Support Services is contingent upon Client’s timely payment of all applicable fees.
2.9 Professional Services. Maavee will provide implementation, configuration or other professional services if such services are specifically purchased in a Statement of Work (“SOW“) signed by both parties and incorporated in its entirety into this Agreement (“Professional Services”).
2.10 Maavee Personnel. Maavee will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with Maavee’s obligations under this Agreement, except as otherwise specified in this Agreement.
3.1 Maavee’s Responsibilities.
(a) Maavee shall use commercially reasonable efforts to make the Maavee Services available via the internet 99.9% of the time, except for: (i) planned downtime (of which Maavee shall give advance electronic notice as provided in the Documentation), and (ii) any unavailability caused by circumstances beyond Maavee’s reasonable control, including, for example, an act of God, act of government, epidemic, pandemic, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Maavee’s employees), general unavailability of Internet service or infrastructure, failures of Non-Maavee Applications, or denial of service attacks.
(b) Maavee shall routinely backup all Client Data and use industry standard security measures to maintain users’ login information for the Maavee Services in confidence. With respect to all storage, backup, and archival media containing Client Data, Maavee shall (a) physically store it in a secure area; (b) logically separate it from any other Client’s data; and (c) protect it by industry standard encryption methods.
(c) Maavee will disburse Maavee Cash to User Wallets once authorized and approved by Client Administrators through the Maavee transaction approval process in the Administrator Console and attribute payments for BPP purchases according to Active User check out through the Maavee Service.
3.2 Client’s Responsibilities. Client will maintain compliance with this Agreement; and
(a) Client will be responsible for the accuracy, quality and legality of Client Data, the means by which Client acquired Client Data, Client’s use of Client Data with the Maavee Service, and the interoperation of any Non-Maavee Applications with which Client uses the Maavee Service. Client shall not (i) use the Maavee Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (ii) use the Maavee Service to store or transmit Malicious Code, (iii) interfere with or disrupt the integrity or performance of the Maavee Service, or third party data contained therein, or (iv) attempt to gain unauthorized access to the Maavee Service, Non-Maavee Applications, or its related systems or networks. Any conduct by Client that in Maavee’s discretion restricts or inhibits any of Maavee’s other Clients from using or enjoying the Maavee Service is expressly prohibited. Client shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Maavee Service, and notify Maavee promptly of any such unauthorized access or use. Client is responsible for obtaining and maintaining all telephone, Internet, computer hardware and other equipment needed for access to and use of the Maavee Service and all charges related thereto;
(b) Client will provide all necessary information and authorizations for the Maavee Service including without limitation completing and executing all required documentation to permit the Partner Bank (defined below) to debit funds from the Client Bank Account (defined below) as authorized in this Agreement;
(c) Client will have available in the Client Bank Account good, collected funds as authorized in this Agreement;
(d) Client will designate Client Administrator(s) to administer and manage the Maavee Service and who are authorized on behalf of Client to (i) add Authorized Users to the Maavee Service, (ii) terminate Active Users and Authorized Users from the Maavee Service, (iii) provision Maavee Cash to Active Users and Authorized Users, and (iv) review reports related to Active Users, Authorized Users and Maavee Cash, which may be available from time to time. Client understands that once Maavee Cash is authorized, approved, and disbursed to User Wallets, it may not be reversed or refunded.
4.1 Fees. Client shall pay fees in accordance with the amounts and at the frequency specified in the applicable Subscription Order or Statement of Work. The Subscription Fees are fixed during the Subscription Term and shall automatically renew for one additional Subscription Term until either (a) an Active User becomes a Terminated User, or (b) this Agreement is terminated by either party. All fees are based on services purchased and not actual usage, payment obligations are non-cancelable, payment terms are quoted from the date of invoice, and fees paid are non-refundable. If Client has not used the Professional Services within one year of payment for such Professional Services, Maavee’s obligation to provide such Professional Services terminates and Client shall not be entitled to a refund, unless set forth in the applicable Statement of Work.
4.2 Billing. Maavee shall invoice Client on the first day of each calendar month as follows:
(a) Subscription Fees. Client will be invoiced for the maximum number of Active Users in the previous calendar month. For clarity, Client will not be billed for Authorized Users who did not become Active Users. If an Active User becomes a Terminated User, Client will not be billed for Terminated Users, beginning the calendar month immediately following the date of termination;
(b) Maavee Cash. Client will be invoiced for the sum of the amount of Maavee Cash that was deposited into all User Wallets of Active Users in the previous calendar month. For clarity, Client will not be billed for Maavee Cash that was disbursed to User Wallets of Authorized Users until such time that they become Active Users; and
(c) Maavee Cash Retainer. On a case-by-case basis as specified in the Subscription Order or Statement of Work, Client may be invoiced for a retainer to be held in trust and applied to any future invoice(s).
4.3 Payment. Client shall pay all invoices within fifteen (15) days of the invoice date. Client agrees to provide Maavee or the applicable Authorized Reseller, with complete and accurate billing and contact information and to notify Maavee or the applicable Authorized Reseller of any changes to such information. The parties agree that if Client purchases subscriptions through an Authorized Reseller and such Authorized Reseller’s order form or invoice includes different payment terms, the Authorized Reseller’s payment terms shall prevail.
4.4 Maavee Control of Maavee Cash.
MAAVEE’S FINANCIAL INSTITUTION BANK PARTNER (“PARTNER BANK”) WILL HOLD USER WALLET FUNDS FOR ACTIVE USER’S BENEFIT, IN ONE OR MORE BANK ACCOUNTS (“PARTNER BANK CUSTODIAL ACCOUNT”) UNTIL PAYMENT IS MADE BY THE PARTNER BANK TO ACTIVE USER, BRAND PARTNER, MAAVEE OR OTHER APPLICABLE PAYEE (“PAYEE“) ACCORDING TO MAAVEE’S INSTRUCTIONS. NO INTEREST WILL BE PAID TO CLIENT ON AMOUNTS HELD IN SUCH PARTNER BANK CUSTODIAL ACCOUNT(S).
CLIENT ACKNOWLEDGES AND AGREES THAT MAAVEE HAS AUTHORITY AND CONTROL OVER THE FUNDS HELD BY THE PARTNER BANK FOR ACTIVE USER’S BENEFIT.
4.5 Insufficient Funds in Client Bank Account. Should Client have insufficient funds available for the payment of invoices (a) neither the Partner Bank nor Maavee shall be under any obligation to pay any third-party amounts hereunder on Client’s behalf, (b) Client may be charged an NSF fee, subject to applicable law, (c) Client must transfer to Partner Bank the full amount of the unfunded fee plus all applicable NSF fees charged to Client immediately upon request, and (d) indemnify Maavee, Partner Bank, and each of their affiliates, officers, directors, employees, agents, and other representatives from any claim arising out of or relating to any failure to pay or timely pay Payees. In the event that Client does not cure any NSF within thirty (30) days’ written notice (including email), Client agrees that the outstanding NSF amount will bear interest at a rate of 18% or, if lower, the highest rate permissible under applicable law until the NSF amount plus applicable interest is paid by Client to Maavee.
4.6 Sole Remedy. In addition to the limitations set forth Section 8, Maavee’s sole liability to Client or any third party related to the ACH Services will be for claims arising solely out of Maavee’s errors or omissions and the sole remedy shall be to furnish a correct advice of deposit, and/or corrected or reversal debit or credit, as the case may be; provided that, in each case Client notifies Maavee no later than one (1) business day after the occurrence of such errors or omissions.
4.7. Late Fees. If Client does not pay fees within fifteen (15) days of the invoice date pursuant to Section 4.3, late charges may be added at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Client shall reimburse Maavee for all reasonable, actual costs (including reasonable attorneys’ fees) incurred by Maavee in the collection of overdue amounts. The parties agree that if Client purchases subscriptions through an Authorized Reseller and such Authorized Reseller’s order form or invoice includes different overdue charges, the Authorized Reseller’s overdue charges terms shall prevail.
4.8. Taxes. If Maavee has the legal obligation to pay or collect taxes for which Client is responsible, including but not limited to, sales, use, transfer, privilege, excise, and all other taxes and duties that are levied or imposed by reason of Maavee’s performance under this Agreement, Maavee shall invoice the appropriate amount to Client. Client shall pay all applicable taxes, unless Client provides Maavee with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.9 Suspension of Services. If any amount owed by Client is thirty (30) days or more overdue, Maavee may, with seven (7) days’ prior notice to Client, without limiting Maavee’s other rights and remedies, suspend Maavee Services until Client pays such amounts owed. Maavee shall not exercise its rights under this Section 4.9 if the applicable charges are under reasonable and good-faith dispute and Client is cooperating diligently to resolve the dispute. If Client believes, in good faith, that an invoice contains incorrect fee information, Client shall send a written notice to Maavee or its Authorized Reseller within fifteen (15) days of receipt of invoice (“Dispute Period“) providing a reasonably detailed explanation of the nature of the dispute and specifying the dollar amounts withheld and the reasons for withholding such amounts. If Maavee or Authorized Reseller does not respond to the notice within thirty (30) days, Client’s determination as to the correct fee information set forth in the written notice shall be final. If Client does not dispute the applicable invoice during the Dispute Period, any such dispute shall be deemed waived. Client remains obligated to pay Maavee or the Authorized Reseller for all portions of the applicable invoice that are not under reasonable and good faith dispute. The parties shall work together expeditiously and in good faith to resolve all fee disputes. The parties agree that if Client purchases subscriptions through an Authorized Reseller and such Authorized Reseller’s order form or invoice includes different payment dispute procedures, the Authorized Reseller’s payment dispute procedures shall prevail.
5.1 General. All right, title, and interest in and to the Maavee Services, Content, Aggregate Data, Maavee’s Confidential Information, and Documentation, including, without limitation, all modifications, enhancements, derivative works, and intellectual property rights thereto shall belong solely to Maavee and/or its applicable suppliers.
5.2 Reserved Rights. Maavee does not grant any rights in and to the Maavee Services except as expressly written in this Agreement. Nothing in this Agreement shall limit in any way Maavee’s right to develop, use, license, create derivative works of, or otherwise exploit the Maavee Services or to permit third parties to do so.
5.3 Ownership of Client Data. Client exclusively owns all right, title and interest in and to Client Data. In the event of termination or expiration of this Agreement or any applicable Subscription Order, and if requested by Client within thirty (30) days of such termination or expiration, Maavee will (a) return Client Data or (b) destroy or permanently erase Client Data. After such 30-day period. Maavee will have no other further obligation to maintain or provide access to Client Data.
5.4 Active User Data. Active Users own all right, title and interest in and to Active User Data subject to the User Terms.
5.5 License to Maavee. Client hereby grants, and shall grant, to Maavee a worldwide, royalty-free, non-exclusive, perpetual right to access, use, reproduce and prepare derivative works based on Client Data for the purpose of providing the Maavee Services, to improve or enhance the Maavee Services, and to compile, use and disclose Aggregate Data. Client is responsible for ensuring that it has obtained all necessary third-party consents and made all required disclosures to enable the foregoing grant.
5.5 Suggestions. Client or its representatives may provide Maavee with suggestions, enhancement requests, recommendations or other feedback relating to the Maavee Services (“Feedback”). Nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Maavee’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, or require Maavee to compensate or credit Client or the individual providing such Feedback.
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement. Maavee’s Confidential Information includes this Agreement, Aggregate Data, the Maavee Services, Content, business and marketing plans, technology, financial and technical information, product designs, and business processes. Client’s Confidential Information includes Client Data. Confidential Information (except for Client Data) does not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (d) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Confidentiality. The Receiving Party shall (a) not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Notwithstanding the foregoing, Maavee may disclose the terms of this Agreement and any applicable Subscription Order to a subcontractor or Non-Maavee Application provider to the extent necessary to perform Maavee’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
6.3 Protection. The Receiving Party shall protect the confidentiality of the Disclosing Party’s Confidential Information it receives in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care). Maavee shall notify Client promptly in the event a security breach related to Client Data.
6.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
6.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party may, in addition to any other remedies available to it, seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
7.1 Mutual Warranties. Each party represents and warrants that (a) it has the legal power to enter into this Agreement, and (b) it will not transmit to the other party any Malicious Code.
7.2 Maavee’s Warranty. Maavee warrants during the Subscription Term (a) that the Maavee Services will be free of material defects and will function in substantial conformance to the Documentation and (b) Professional Services will be performed in a manner consistent with generally accepted industry standards. To the extent permitted by applicable law, THE FOREGOING LIMITED WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND MAAVEE DISCLAIM ANY AND ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, REASONABLE CARE, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT MAAVEE KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE). TO THE EXTENT PERMITTED BY APPLICABLE LAW, MAAVEE FURTHER DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, AND/OR REPRESENTATIONS OF TITLE AND NON-INFRINGEMENT. CONTENT IS PROVIDED “AS-IS”, AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER. No action for breach of the limited warranty set forth in this Section 7.2 may be commenced more than one (1) year following the expiration of the applicable Subscription Term.
7.3 Client’s sole and exclusive remedy and Maavee’s entire liability for any breach of the warranty set forth in (a) Section 7.1(a) shall be the repair of the defect or (b) Section 7.2(b) shall be the re-performance of the Professional Services, or if Maavee is unable to perform the Professional Services as warranted, Client shall be entitled to recover the fees paid to Maavee for the nonconforming Professional Services.
8.1 Consequential Damages. NEITHER PARTY IS LIABLE FOR ANY LOST PROFITS OR FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, OR THE MAAVEE SERVICES, EVEN IF EITHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 Limitation of Liability. EXCEPT FOR BREACH OF SECTIONS 2.2 (RESTRICTIONS) OR 3.2 (CLIENT RESPONSIBILITIES), INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 OR INFRINGEMENT OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS, EACH PARTY’S AGGREGATE LIABILITY FOR CLAIMS RELATING TO THIS AGREEMENT OR THE MAAVEE SERVICES, WHETHER FOR BREACH OF CONTRACT OR IN TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO THE GREATER OF (1) THE AMOUNT ACTUALLY PAID BY CLIENT TO MAAVEE HEREUNDER DURING THE 12-MONTH PERIOD IMMEDIATELY BEFORE THE CLAIM WHICH GAVE RISE TO THE LIABILITY OR (2) THE ANNUALIZED SUBSCRIPTION VALUE AT THE TIME OF SUCH CLAIM. THE LIMITATIONS SET FORTH IN THIS SECTION 8 SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9.1 Indemnification by Us.
(a) Maavee will defend Client against any claim, demand, suit or proceeding made or brought against Client by a third party alleging that any Maavee Services infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Client”), and will indemnify Client from any damages, attorney fees and costs finally awarded against Client as a result of, or for amounts paid by Client under a settlement approved by Maavee in writing of, a Claim Against Client, provided, that Client (i) promptly gives written notice of the Claim Against Client to Maavee; (ii) gives Maavee sole control of the defense and settlement of the Claim Against Client (provided that Maavee may not settle or defend any Claim Against Client unless Maavee unconditionally release Client of all liability); and (iii) provides to Maavee, at Maavee’s cost, all reasonable assistance.
(b) In the event Maavee is required to indemnify Client in accordance with this Section 9.1, or if Maavee reasonably believes the Maavee Services may infringe a third party’s intellectual property rights, then Maavee may (i) modify the Maavee Services so that it no longer infringes without materially adversely affecting its operation, or materially altering its capacity or performance, (ii) obtain a license for Client’s continued use of the Maavee Services, and/or (iii) remove the infringing component from the Maavee Services without materially adversely affecting its operation, or materially altering its capacity or performance. If, despite Maavee’s commercially reasonable efforts to do so, the foregoing options are not reasonably practicable, then Maavee may terminate this Agreement, in which case Maavee shall issue to Client a refund of all prepaid fees covering the remainder of the then-current Subscription Term(s) from the point in time when Client were unable to make use of the Maavee Services due to the third-party infringement claim.
(c) Maavee is not liable for any Claim Against Client to the extent such liability is the result of (i) modifications to the Maavee Services by anyone other than Maavee or Maavee’s agents (and where Maavee or Maavee’s agents made the modifications using requirements, documents, written specifications or other written materials submitted by Client or Client’s agents or representatives, Maavee is also not liable); (ii) the use or combination of the Maavee Services with any other item not provided by Maavee where in the absence of such use or combination, the Maavee Services alone would not have given rise to the Claim Against Client; (iii) Client’s continued use of an infringing version of the Maavee Services when the then-current version of the Maavee Services has been modified to be non-infringing; or (iv) Claim Against Client arises from a Non-Maavee Application, Content or Client’s breach of this Agreement.
9.2 Indemnification by Client. Client will defend Maavee and its Affiliates against any claim, demand, suit or proceeding made or brought against Maavee by a third party (a) alleging that the Client Data, or Client’s use of the Maavee Services in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party; or (b) arising from any (i) breach of this Agreement or (ii) inaccuracies or other errors to any payment information attributable to Client Employees, Client or Client’s agents or employees; (iii) NSF events; (iv) any fraudulent, dishonest, or negligent acts or omissions of Client Employee’s, Client or Client’s employees or agents involving Client’s use of the ACH Services (“Claim Against Maavee”), and will indemnify Maavee from any damages, attorney fees and costs finally awarded against Maavee as a result of, or for any amounts paid by Maavee under a settlement approved by Client in writing of, a Claim Against Maavee , provided, that Maavee (1) promptly gives written notice of the Claim Against Maavee to Client; (2) gives Client sole control of the defense and settlement of the Claim Against Maavee (provided that Client may not settle or defend any Claim Against Maavee unless it unconditionally releases Maavee of all liability); and (3) provides to Client, at Client’s cost, all reasonable assistance.
9.3 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim Against Client described in this section.
11.1 Term of Agreement. This Agreement terminates when all Subscription Terms expire or all Subscription Orders are otherwise terminated.
11.2 Renewal. Each Subscription Order shall automatically renew for additional Subscription Terms of the same duration as the immediately preceding the Subscription Term (but no less than 30 days), unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant Subscription Term. To be valid, Client’s notice of non-renewal must be delivered to Maavee at clientsuccess@gomaavee.com. For each automatic renewal, per-unit subscription pricing will increase by no more than 10% as compared to the prior term unless Maavee provides Client with notice of different pricing at least 30 days prior to the applicable renewal. A new Subscription Order is not required unless additional or different services are ordered.
11.3 Termination. A party may terminate this Agreement or any Subscription Order for cause (a) upon thirty (30) days prior written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such period; (b) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; or (c) as otherwise provided herein. Maavee may terminate this Agreement immediately without prior written notice if Client fails to pay any sum due under Section 4.1 or fails to perform any obligation required to be performed hereunder.
11.4 Effects of Termination. Upon any expiration or termination of this Agreement, and upon expiration of the Subscription Term if Client does not renew in accordance with Section 11.2, (i) the rights and licenses granted hereunder will automatically terminate, and Client may not continue to use the Maavee Services, and (ii) any Active Users shall become Terminated Users and shall continue to have access to the Maavee Services as outlined in the individual Terms of Use, and (iii) Maavee Cash balances in User Wallets shall remain with the Terminated Users shall not be returned to Client. If the Agreement is terminated based upon Maavee’s uncured material breach, Maavee shall refund to Client any prepaid fees covering the remainder of Client’s Subscription Term after the date of such termination. If the Agreement is terminated based on Client’s uncured material breach, Client shall pay any unpaid fees covering the remainder of the Subscription Term(s) of all Subscription Orders after the effective date of such termination. Termination of this Agreement shall not limit the parties from pursuing any other remedies available to it, including injunctive relief.
12.1 General. This Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party. Only the parties to this Agreement may enforce it. The parties are independent contractors, and no branch or agency, partnership, association, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement. Headings in this Agreement are for the convenience of the parties only. Accordingly, they do not constitute a part of this Agreement when interpreting or enforcing this Agreement.
12.2 Severability. If any portion hereof is found to be void or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
12.3 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets not involving a direct competitor of the other party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.4 Entire Agreement; Breach and Waiver; Amendment. This Agreement, including all Subscription Orders, constitutes the complete and exclusive understanding and agreement between the parties regarding their subject matter and supersede all prior or contemporaneous agreements or understandings, written or oral, relating to their subject matter. Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the party against whom the waiver, modification or amendment is to be asserted. Notwithstanding anything to the contrary, this Agreement shall supersede the terms of any Client purchase order or other business form (“Client’s Form”). No waiver of any breach of this Agreement shall constitute a waiver of a subsequent breach, whether or not of the same nature. All waivers shall be strictly construed. No delay in enforcing any right or remedy as a result of a breach of this Agreement shall constitute a waiver thereof. Accordingly, no course of conduct shall constitute an amendment or modification of this Agreement.
12.5 Force Majeure. Subject to the further provisions of this section, any delays or failures by either party in the performance of its obligations hereunder shall be excused if and to the extent such delays or failures are caused by occurrences beyond such party’s reasonable control, including, without limitation, acts of God, strikes or other labor disturbances, war, whether declared or not, sabotage, and/or any other cause or causes, whether similar or dissimilar to those herein specified, which cannot reasonably be controlled by such party. Performance will be excused only during the actual period an occurrence continues. Accordingly, neither party may terminate this Agreement for cause on account of a failure of the other party timely to perform its obligations hereunder during the period of such excused performance pursuant to the foregoing.
12.6 Federal Government End Use Provisions. Maavee provides the Maavee Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Maavee Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). In the event that a government agency may need rights not conveyed under these terms, it must negotiate with Maavee to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
12.7 Governing Law. The laws of the State of California govern this Agreement as if performed wholly within the state and without giving effect to the principles of conflict of law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Any legal actions or proceeding arising under this Agreement must be brought exclusively in the federal or state courts located in Los Angeles County and the parties hereby consent to personal jurisdiction and venue therein.
12.8 Client’s Reference and Case Study. Only with Client approval, Client will make a representative reasonably available to participate in reference inquiries from prospective Maavee clients and allow Maavee to reference Client, including use of Client’s logo, in Maavee client lists and marketing materials.
12.9 Survival. The parties’ rights and obligations under Sections 4 (Fees), 5 (Intellectual Property Rights), 6 (Confidentiality), 8 (Damages and Limitation of Liability), 9 (Mutual Indemnification), 11 (Term and Termination) and 12 (Miscellaneous) shall survive the termination of this Agreement for any reason.
12.10 Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Client will be addressed to the relevant billing contact designated by Client. All other notices to Client will be addressed to the relevant Client Contact designated by Client in the applicable Subscription Order.
12.11 Export Restrictions. Each party agrees to comply with all applicable regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the importation and use of the Maavee Services and Maavee Confidential Information and any media, to assure that the Maavee Services, Maavee Confidential Information and media are not exported, imported or used in violation of law or applicable regulation.
12.12 Restricted Use. Client is prohibited from using the Maavee Services when headquartered in any of the following countries: Iraq, China, Russia, or any state listed on the United States State Department State Sponsors of Terrorism List found here https://www.state.gov/state-sponsors-of-terrorism/. Users who are nationals or domiciled in these countries are exempt from this restriction.
12.13 Business Contacts. Client agrees to allow Maavee and its Affiliates to store and use Client’s business contact information (Client’s name, address, Users’ (including administrators’) names, business phone numbers, business e-mail addresses and billing contacts) anywhere they do business.
12.14 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all counterparts shall constitute but one and the same instrument, sufficient evidence of which for all purposes shall be any set containing counterparts executed by both parties. The parties agree that such counterparts may be delivered by facsimile or in a PDF format and that such counterparts shall evidence a binding agreement.