READ CAREFULLY BEFORE USING THE SERVICE: This Agreement is a legal agreement between you (either an individual or a single entity) and MatBoss, LLC, a Minnesota limited liability company (“MatBoss”) that governs your use of Services made available by MatBoss. If you are an employee, reseller, service provider, consultant, contractor or other party who is obtaining the Service on behalf of another person or organization, you will be deemed to have accepted the terms and conditions of this Agreement on behalf of that person or organization, and you and such entity or organization will collectively be referred to as “You” or the “User”.
RECITALS
A. MatBoss has developed certain software applications which it makes available to subscribers via the internet on a pay-per-use basis.\
B. The User wishes to use MatBoss's service and has agreed to take and pay for MatBoss's Service subject to the terms and conditions of this Agreement.
1. Definitions
The following terms will have the following definitions as used in this Agreement.
Business Day: means any day which is not a Saturday, Sunday or public holiday in the United States.
Documentation: means the user manuals, online help, training materials, and other documentation made available to the User by MatBoss regarding the Services and the user instructions for the Services.
Services: refer to the specific MatBoss internet-accessible service that provides use of MatBoss’s Software that is hosted by MatBoss or its services provider, and made available to User and User over a network on a term-use basis. The Services include any information, data or Software downloaded from MatBoss’s site or otherwise owned or provided by MatBoss.
Software: means the online software applications in object code version provided by MatBoss as part of the Services and currently known as “Matchmaker”, including updates, modifications and enhancements that are made available by MatBoss from time to time in its discretion.
Subscription Fees: means the subscription fees payable by the User to MatBoss for the Services as set forth by MatBoss from time to time.
User Data: means the data inputted or provided by the User or MatBoss on the User's behalf.
Virus: any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by rearranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
2. User subscription/services
2.1 Subject to the User’s payment of required fees and its/his/her compliance with all terms and conditions of this Agreement, MatBoss grants to User, a non-exclusive, non-transferable worldwide right to use the Services solely for the User's personal, non-commercial transitory viewing purposes from a single server/device. User acknowledges that this Agreement is a services agreement and MatBoss will not be delivering copies of the Software to User as part of the Services.
2.2 User will not, and shall not permit anyone to: (i) copy, republish, download, display, transmit or distribute the Services or Software in any form of media or by any means, (ii) make the Services available to any person other than User, (iii) use the Software or Services for commercial purposes or public display (commercial or non-commercial), (iv) use or access the Services to provide service bureau, time-sharing or other computer hosting services to third parties, (v) modify or create derivative works based upon the Services or Documentation, (vi) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the Software used to provide the Services or in the Documentation, (vii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the Services, except and only to the extent such activity is expressly permitted by applicable law, (viii) access the Services or use the Documentation in order to build a similar product or competitive product ; or (ix) access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, illegal, discriminatory or that causes damage or injury to any person or property and MatBoss reserves the right, without liability to the User or User, to disable the User’s access to any material that breaches the provisions of this clause.
2.3 The User will use all reasonable efforts to prevent any unauthorized access to, or use of, the Services and/or the Software or Documentation and, in the event of any such unauthorized access or use, promptly notify MatBoss.
3. Service level objectives/support
3.1 MatBoss reserves the right to take the Service offline for scheduled maintenance and will use its reasonable efforts to provide User with reasonable advanced notice if possible.
3.2 MatBoss will, as part of the Services and at no additional cost to the User, provide the User with telephone and email support services between the hours of 7 a.m. and 10 p.m. to diagnose problems or performance deficiencies with the Software. MatBoss will use its best efforts to respond to requests for support within twenty-four (24) hours. MatBoss may amend this support services policies in its sole and absolute discretion from time to time.
4. Customer data/privacy policy
4.1 The User shall own all rights, title and interest in and to all of the User Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the User Data. User will comply with all applicable local, state, national and foreign laws in connection with its use of the Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. User acknowledges that MatBoss exercises no control over the content of the information transmitted by User, including through the Services. User will not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
4.2 MatBoss is granted a limited license to the User Data for the purpose of providing the Services, including a license to collect, process, store, generate, and display User Data to the extent necessary in the providing of the Services. MatBoss will: (a) keep and maintain User Data in confidence, using such degree of care as is appropriate and consistent with its obligations as further described in this Agreement and applicable law to avoid unauthorized access, use, disclosure, or loss; and (b) use and disclose User Data exclusively for the purpose of providing the Services, such use and disclosure being in accordance with this Agreement and applicable law.
4.3 As a part of the Services, MatBoss will maintain backup of User Data and for recovery of such data in the event that the Services may be interrupted. Additionally, MatBoss shall store a backup of User Data in an off-site “hardened” facility no less than daily, maintaining the security of User Data, the security requirements of which are further described herein. In the event of any loss or damage to User Data, the User's sole and exclusive remedy shall be for MatBoss to use reasonable commercial endeavours to restore the lost or damaged User Data from the latest back-up of such User Data maintained by MatBoss in accordance with the archiving procedure described in its Back-Up Policy. MatBoss shall not be responsible for any loss, destruction, alteration or disclosure of User Data caused by any third party (except those third parties sub-contracted by MatBoss to perform services related to User Data maintenance and back-up).
4.4 If MatBoss processes any personal data on the User’s behalf, the parties record their intention that the User shall be the data controller and MatBoss shall be a data processor and in any such case:
(a) the User shall ensure that the User is entitled to transfer the relevant personal data to MatBoss so that MatBoss may lawfully use, process and transfer the personal data in accordance with this agreement on the User's behalf;
(b) the User shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
(c) User is solely responsible for determining the purposes and means of processing User Data by MatBoss under this Agreement, including that such processing according to User’s instructions will not place MatBoss in breach of applicable data protection laws. Prior to processing, User will inform MatBoss about any special categories of data contained within User Data and any restrictions or special requirements in the processing of such special categories of data, including any cross border transfer restrictions.
(d) MatBoss shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the User from time to time; and
(e) User shall take appropriate technical and organisational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction or damage.
5. Third party providers
The User acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase services from, third parties via third-party websites and that it does so solely at its own risk. MatBoss makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the User, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the User and the relevant third party, and not MatBoss. MatBoss does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
6. MatBoss's obligations/warranties
6.1 THE SERVICES AND SOFTWARE ARE PROVIDED “AS-IS”. MATBOSS DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT MATBOSS WILL CORRECT ALL SERVICE ERRORS. USER ACKNOWLEDGES THAT MATBOSS DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND ALL OTHER TERMS OF ANY KIND WHATSOEVER IMPLIED BY STATUTE OR COMMON LAW INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCLUDED FROM THIS AGREEMENT AND SUPPLIER HEREBY DISCLAIMS THE SAME. NEITHER MATBOSS NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE OPERATION OF THE SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR SHALL MATBOSS OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF USER DATA, FILES, OR PROGRAMS.
6.2 Without limiting the foregoing; the materials appearing on MatBoss’s website could include technical, typographical, or photographic errors. MatBoss does not warrant that any of the materials on its website are accurate, complete, or current. MatBoss may make changes to the materials contained on its website at any time without notice, provided MatBoss does not make any commitment to update the materials. User assumes sole responsibility for results obtained from the use of the Services and the Documentation, and for conclusions drawn from such use. MatBoss shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to MatBoss by the User in connection with the Services, or any actions taken by MatBoss at the User's direction and does not warranty or make any representations concerning the accuracy or likely results or reliability of such material.
7. User's obligations
The User agrees to: (a) comply with all applicable laws and regulations with respect to its activities under this Agreement; (b) use the Services and the Documentation in accordance with the terms and conditions of this agreement; (c) obtain and shall maintain all necessary licences, consents, and permissions necessary for MatBoss, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services; and (d) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to MatBoss’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the User's network connections or telecommunications links or caused by the internet.
8. Fees
In consideration for the Services provided, User shall timely pay the applicable Subscription Fees to MatBoss.
9. Proprietary rights
The User acknowledges and agrees that MatBoss and/or its licensors own all intellectual property rights in the Services, the Software and the Documentation. This Agreement does not grant the User any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Software, Services or the Documentation.
10. Confidentiality
10.1 Definition. “Confidential Information” means any information disclosed by a party to the other party, directly or indirectly, which, (a) if in written, graphic, machine-readable or other tangible form, is marked as “confidential” or “proprietary,” (b) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in writing to the receiving party to be “confidential” or “proprietary” within 30 days of such disclosure, (c) is specifically deemed to be confidential by the terms of this Agreement, or (d) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself. Confidential Information will also include information disclosed by third parties to a disclosing party under an obligation of confidentiality. Subject to the display of User Data as contemplated by this Agreement, User Data is deemed Confidential Information of User. MatBoss Software and Documentation are deemed Confidential Information of MatBoss.
10.2 Confidentiality. During the term of this Agreement and for (five) 5 years thereafter (perpetually in the case of Software), each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other party. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party's Confidential Information and which are provided to the party hereunder. Each party may disclose Confidential Information of the other party on a need-to-know basis to its contractors who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the receiving party.
10.3 Exceptions. Confidential Information excludes information that: (a) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving party, (b) is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party, or (c) is independently developed by the receiving party without use of the Confidential Information as demonstrated by the written records of the receiving party. The receiving party may disclose Confidential Information of the other party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving party shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Each party may disclose the existence of this Agreement and the relationship of the parties, but agrees that the specific terms of this Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms of this Agreement to those with a need to know and under a duty of confidentiality such as accountants, lawyers, bankers and investors.
11. Limitation of liability
NEITHER PARTY (NOR ANY LICENSOR OR OTHER SUPPLIER OF MATBOSS) SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MATBOSS’S AGGREGATE LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY USER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE. The foregoing limitations shall not apply to the parties’ obligations (or any breach thereof) under Section 10.
12. Term and termination
12.1 This Agreement may be terminated as follows:
(a) by MatBoss, if User fails to pay any amount due;
(b) by either party, if the other party commits a material breach of any of the terms of this Agreement (other than a payment default) and (if such a breach is remediable) fails to remedy that breach within twenty (20) days of that party being notified in writing of the breach; or
(c) by either party, if an order is made or a resolution is passed for the dissolution of the other party; or
(d) by either party, if the other seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days; or
(e) by either party, if the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way.
12.2 On termination of this agreement for any reason:
(a) MatBoss may cease providing User/User all use of Services; including, MatBoss may, without liability to the User, disable the User’s password, account and access to all or part of the Services;
(b) User will cease all use of and destroy any downloaded material in its possession that was obtained through the Services;
(c) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(d) Upon termination of this Agreement and upon subsequent written request by the Disclosing Party, the Receiving Party of tangible Confidential Information shall immediately return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the parties.
12.3 Notwithstanding, the provisions of Sections 4.1, 9, 10, 11, 12.2, and 17, will survive the termination of this Agreement.
13. Force majeure
MatBoss shall have no liability to the User under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of MatBoss or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of MatBoss’ or sub-contractors, provided that the User is notified of such an event and its expected duration.
14. Severance
If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
15. Assignment
The User shall not, without the prior written consent of MatBoss, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
16. No partnership or agency
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
17. Governing law and jurisdiction
This Agreement shall be interpreted in accordance with and shall be governed by the substantive laws of the State of Minnesota. User hereby irrevocably consents to the jurisdiction of the courts of the State of Minnesota in connection with any action or proceeding which arises out of or relates to this Agreement and agree that any action instituted under the Agreement shall be commenced, prosecuted and continued only in the federal courts of Minnesota located in Minneapolis or the courts of the State of Minnesota located in Hennepin County, which shall be the exclusive and only proper forum for adjudicating such a claim. The United Nations Convention on the International Sale of Goods does not apply to this Agreement.
