MYCAT MARKETPLACE SERVICES AGREEMENT
This MyCAT Marketplace Services Agreement is entered into by and between Homee, Inc. (“HOMEE”) and the organization (“Customer”) executing an Order Form or similar form referencing or otherwise incorporating this Agreement (“Order Form”). This Agreement shall be effective as of the “Effective Date” of the first Order Form between Customer and HOMEE.
1.1 “Affiliate” means a legal entity that controls, is controlled by, or is under common control with a party, where “control” is defined as owning more than 50% of the voting shares of such entity.
1.2 “Agreement” means this MyCAT Marketplace Services Agreement, any Exhibits, and each Order Form(s).
1.3 “Authorized Users” means Customer’s and its Affiliates’ employees, agents, directors, subcontractors, or other representatives who are authorized to access and use the MyCAT Marketplace Services through Customer’s account under this Agreement for the purposes of administering Customer’s and/or its Affiliates’ use of such services.
1.4 “Confidential Information” means any business or technical information disclosed by one party to the other party, including Customer Data, provided that it is identified as confidential at the time of disclosure or that under the circumstances, a person exercising reasonable business judgment would understand it to be confidential or proprietary.
1.5 “Customer Data” means any and all information, data, materials, works, expressions, or other content, including any that are (a) uploaded, submitted, posted, transferred, transmitted, or otherwise provided or made available by or on behalf of Customer or any Authorized User for use by or through the MyCAT Marketplace, or (b) collected, downloaded, or otherwise received by HOMEE or the MyCAT Marketplace for Customer or any Authorized User pursuant to this Agreement or any Order Form or at the written request or instruction of Customer or such Authorized User.
1.6 “Documentation” means all printed and online user manuals and other technical materials relating to the MyCAT Marketplace Services made available to Customer by HOMEE, as may be updated from time to time.
1.7. “Malicious Code” means any: (a) virus, trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems, or software; or (b) time bomb, drop dead device, or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of any Person, or otherwise deprive Customer or Authorized Users of their lawful right to use the MyCAT Marketplace Services.
1.8 “MyCAT Marketplace” means the cloud-based web marketplace software-as-a-service offering delivered and accessible through https://www.mycat.homee.com that provides real property catastrophe claim planning; claim assignment and acceptance; claim management; and, claim related services and materials (the “MyCAT Marketplace Services”), and the ancillary services performed by HOMEE to configure and rollout the MyCAT Marketplace to Customer and Authorized Users, as described in an applicable Order Form.
1.9 “Order Form” means the document that Customer uses to order the MyCAT Marketplace Services that is signed by both Customer and HOMEE.
1.10 “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
1.11 “Process” means to perform any operation or set of operations on any data, information, material, work, expression, or other content, including to (a) collect, receive, input, upload, download, record, reproduce, store, organize, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other improvements or derivative works, (b) process, retrieve, output, consult, use, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or (c) block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
1.12 “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction.
2.1 MyCAT Marketplace Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, HOMEE hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable limited license for Customer to access MyCAT Marketplace and use MyCAT Marketplace Services and Documentation within the United States and Canada. Customer and its Authorized Users may access MyCAT Marketplace and use the MyCAT Marketplace Services solely for Customer’s own internal business purposes in accordance with this Agreement.
2.2 Cooperation and Assistance. Customer will cooperate with HOMEE in good faith and provide to HOMEE the information and personnel that HOMEE reasonably requests and requires to provide the MyCAT Marketplace Services. Customer, at its option, may utilize certain third-party software and services with the MyCAT Marketplace Services and is responsible for acquiring and maintaining all such third-party software and services required to access, use, or integrate with the MyCAT Marketplace Services, including all costs related to the foregoing.
2.3 Authorized Users. Customer is responsible for maintaining the confidentiality of all Authorized Users’ usernames and passwords created by or assigned to Customer’s account (“Credentials”) and is solely responsible for all activities that occur under such Credentials. Customer will comply with all applicable laws, rules and regulations in connection with its use of the MyCAT Marketplace Services. Customer will promptly notify HOMEE of any suspected violation of this Agreement by an Authorized User and will cooperate with HOMEE to address the suspected violation. HOMEE may suspend an Authorized User’s access to the MyCAT Marketplace Services upon notice to Customer in the event that HOMEE reasonably determines that such Authorized User violated this Agreement. Credentials may not be shared or used by more than one individual Authorized User but may be reassigned to a new Authorized User. Upon termination or expiration of the Agreement, all Credentials will be deactivated.
2.4 Customer-Controlled Data Sharing Functionality.
(a) Generally. The MyCAT Marketplace Services include the capability for Customer, at its option and in its sole discretion, to share Customer Data with other Customer-designated HOMEE customers and to access or use data from other HOMEE customers, as described in the Documentation. The HOMEE customer sharing its data is a “Provider,” and the HOMEE customer accessing or using shared data is a “Consumer.”
(b) When Customer is Provider. Provider may, at its option and in its sole discretion, grant Consumer access to designated sets of Provider’s Customer Data as further described in the Documentation. Provider acknowledges and agrees that: (1) Consumers will have the access designated by Provider (including to view, download, and query the Customer Data) and that it is Provider’s sole responsibility to evaluate any risks related to its sharing of Customer Data with Consumers; (2) HOMEE has no control over, and will have no liability for, any acts or omissions of any Consumer with respect to Provider’s sharing of Customer Data; and (3) it remains responsible for its Customer Data as set forth in the Agreement.
(c) When Customer is Consumer. By accessing or using Provider’s data, Consumer acknowledges that (1) HOMEE has no liability for such data or Consumer’s use of such data, and (2) HOMEE may collect information about Consumer’s use of and access to the MyCAT Marketplace Services and to Provider’s data (including identifying Consumer in connection with such information) and share it with Provider.
2.5 Customer Data. Customer is responsible for obtaining any necessary right and licenses for use of the Customer Data by Customer and HOMEE as contemplated in this Agreement. Customer agrees that it has the legal right and authority to access, use and disclose to HOMEE any Customer Data. As between the parties, Customer retains all right, title and interest (including any and all intellectual property rights) in and to the Customer Data. Subject to the terms of this Agreement, Customer hereby grants to HOMEE and its Affiliates a non-exclusive, worldwide, royalty-free right to Process the Customer Data solely to the extent necessary to provide the MyCAT Marketplace Services to Customer, to prevent or address service or technical problems therein, or as may be required by applicable law.
2.6 Restrictions and Acceptable Use. Customer will not allow anyone other than Authorized Users to access or use the MyCAT Marketplace and the MyCAT Marketplace Services from Customer’s accounts. Customer will not and will ensure that its Authorized Users do not: (a) modify, copy, or create derivative works based on, the MyCAT Marketplace, the MyCAT Marketplace Services, or Documentation; (b) attempt to interfere with, disrupt or create an undue burden on the MyCAT Marketplace Services (or any related systems or networks) in a manner that poses or has the potential to pose significant harm to HOMEE’s other customers or use the MyCAT Marketplace Services other than directly for Customer’s benefit; (c) transfer any of its rights except for those assignment rights specifically set forth herein; (d) reverse-engineer or access the MyCAT Marketplace in order to build a competitive product or service; (e) send or store Malicious Code in connection with the MyCAT Marketplace; (f) probe, scan or test any vulnerability of the MyCAT Marketplace Services, including, without limitation, performing penetration, stress or load testing, including by introducing software or automated agents or scripts, other than those expressly permitted by the Documentation or as explicitly set forth in the Order Form, without prior written consent from HOMEE; or, (g) send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights, through the MyCAT Marketplace. Notwithstanding anything to the contrary in the Agreement, HOMEE may temporarily suspend or restrict the MyCAT Marketplace Services upon notice if Customer breaches (b) or (e) above and fails to cure such breach within a reasonable period of receiving notice from HOMEE thereof.
2.7 Information Security. HOMEE will use commercially reasonable and industry standard technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the MyCAT Marketplace Services or Customer Data in accordance with HOMEE’s information security policy as amended from time to time (“HOMEE Information Security Policy”).
3.1 Fees. Subject to the terms and conditions of this Agreement and the applicable Order Form, Customer will pay to HOMEE the fees set forth in the applicable Order Form(s) and this Section 3 (“Fees”).
3.2 Invoices; Payment. Unless otherwise set forth in an Order Form, HOMEE will invoice Customer for Fees for the MyCAT Marketplace Services as set forth in the applicable Order Form and each invoice will be due and payable within thirty (30) days of receipt by Customer. All payment obligations are non-cancellable, and other than as provided in the Agreement, all amounts paid are non-refundable. If any undisputed amounts payable by Customer are still outstanding more than fifteen (15) days after Customer receives notice of non-payment, HOMEE will be entitled, in its sole discretion, to withhold performance and discontinue Customer’s access to the MyCAT Marketplace until all undisputed amounts past due are paid in full.
3.3 Taxes. All Fees and other amounts stated or referred to in this Agreement are exclusive of all taxes, duties, levies, tariffs, and other governmental charges (collectively, “Taxes”). Customer will be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on HOMEE’s net income. If HOMEE has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides HOMEE with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.4 Payment Disputes. HOMEE will not exercise its rights under Section 7.2 (Termination for Cause) or Section 7.5(a) (Suspension of the MyCat Marketplace Services) with respect to non-payment by Customer if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If the parties are unable to resolve such a dispute within thirty (30) days, each party shall have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any terms that would limit remedies on account of a dispute. For clarity, any undisputed amounts must be paid in full.
4.1 Customer Intellectual Property. Customer owns and retains: (a) the Customer Data; (ii) Customer’s name, logo and other trademarks; and (iii) all Intellectual Property Rights in and to any of the foregoing subject only to the limited license granted in Sections 4.2 and 10.5.
4.2 Limited License to Use Customer Data. Subject to the terms and conditions of this Agreement, Customer and any Affiliate licensed hereunder hereby grants HOMEE a limited, royalty-free, fully-paid up, non-exclusive, non-transferable, and non-sublicensable license to Process the Customer Data in the United States strictly as instructed by Customer or an Authorized User and solely as necessary to provide the MyCAT Marketplace Services for Customer’s and such Affiliates’ benefit as provided in this Agreement for so long as Customer or any Authorized User uploads or stores such Customer Data for Processing by or on behalf of HOMEE on the MyCAT Marketplace.
4.3 HOMEE Intellectual Property. HOMEE owns and retains: (i) the MyCAT Marketplace, and all improvements, enhancements or modifications made by any party; (ii) the Usage Data; (iii) any software, applications, inventions or other technology developed by HOMEE in connection with providing the MyCAT Marketplace Services; (iv) HOMEE’s name, logo, and other trademarks; (v) the MyCAT Marketplace name, logo and other trademarks; and (vi) all Intellectual Property Rights in and to any of the foregoing.
4.4 Usage Data. HOMEE may collect and analyze data and other information relating to the provision, use and performance of the MyCAT Marketplace, the MyCAT Marketplace Services and related systems and technologies therefrom (“Usage Data”) in order to improve and enhance the MyCAT Marketplace Services. Subject to the terms of this Agreement, Customer grants HOMEE the right to create and/or extract Usage Data from Customer Data by use or operation of the MyCAT Marketplace Services. HOMEE shall exclusively own all Usage Data. Insights drawn from Usage Data may be disclosed to Customer and other users of the MyCAT Marketplace in connection with their respective use of the MyCAT Marketplace Services; provided that, if HOMEE discloses insights drawn from Usage Data, then all Usage Data in such disclosures will be anonymized and aggregated, will not identify a Customer, the Customer’s users or the Customer’s Customer Data, and will not be disclosed in a manner that would permit a third party to determine a Customer, a Customer’s users’ identity or the Customer’s Customer Data.
5.1 Use and Nondisclosure. A receiving party will not use the disclosing party’s Confidential Information except as necessary under this Agreement and will not disclose Confidential Information to any third party except: (a) to those of its employees and contractors who have a business need to know such Confidential Information; provided that each such employee and contractor is bound to confidentiality restrictions at least as restrictive as the terms set forth in this Agreement or (b) as further described in the Data Processing Addendum. Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving party uses with respect to its own confidential information and in no event less than a reasonable standard of care. The provisions of this Section 5.1 will remain in effect during the Term and for a period of five (5) years after the expiration or termination thereof, except with regard to trade secrets of the disclosing party, which will be held in confidence for as long as such information remains a trade secret.
5.2 Exclusions. The obligations and restrictions set forth in Section 5.1 will not apply to any information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure; (c) is independently developed by the receiving party without access to the disclosing party’s Confidential Information; or (d) the receiving party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing party.
5.3 Permitted Disclosures. The provisions of this Section 5 will not restrict either party from disclosing the other party’s Confidential Information: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that to the extent legally permitted, the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request; (b) on a confidential basis to its legal or professional financial advisors; (c) as required under applicable securities regulations.
5.4 Injunctive Relief. The receiving party acknowledges that disclosure of Confidential Information could cause substantial harm for which damages alone may not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
6.1 Warranty for MyCAT Marketplace Services. HOMEE warrants solely to Customer that (a) the MyCAT Marketplace Services will materially conform to the description set forth in this Agreement and the Applicable Order Form; and (b) the MyCAT Marketplace Services will materially comply with all applicable laws, including federal, state, and local; in each case under normal use and circumstances when used consistently with the terms of this Agreement. As HOMEE’s sole and exclusive liability and Customer’s sole and exclusive remedy for any breach of the warranties set forth in this Section 6.1 HOMEE will use commercially reasonable efforts to modify the MyCAT Marketplace Services to correct the non-conformity.
6.2 Mutual Warranty. Each party warrants that it has validly entered into this Agreement and has the legal power to do so.6.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 6.1 and 6.2, HOMEE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE MYCAT MARKETPLACE OR THE MYCAT MARKETPLACE SERVICES AND HOMEE HEREBY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. HOMEE DISCLAIMS ANY WARRANTY THAT THE MYCAT MARKETPLACE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HOMEE OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. Customer assumes sole responsibility and liability for results obtained from the use of the MyCAT Marketplace and for conclusions drawn from such use. HOMEE will have no liability for any claims, losses, or damages caused by errors or omissions in any Customer Data or other information provided to HOMEE by Customer in connection with the MyCAT Marketplace Services or any actions taken by HOMEE at Customer’s direction. HOMEE will have no liability for any claims, losses or damages arising out of or in connection with Customer’s or any Authorized User’s use of any third-party products, services, software or web sites that Customer may choose to integrate or use with the MyCAT Marketplace.
7.1 Term. This Agreement will commence on the Effective Date and continue for the period specified in the Order Form (the “Term”), unless terminated earlier as provided in this Agreement. Unless otherwise set forth in an Order Form, HOMEE may modify the applicable fees upon prior written notice to Customer at least sixty (60) days prior to the end of the then-current term, provided that the modified fees will not apply until the next renewal term.
7.2 Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to cure any material breach of this Agreement (including a failure to pay Fees) within thirty (30) days after written notice (without limiting Section 3.4 (Payment Disputes)); (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party and is not dismissed within 60 days. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise. For any termination of this Agreement by Customer for cause in accordance with Section 7.2(a), Customer shall be entitled to a refund of any prepaid unused Fees for the MyCAT Marketplace Services purchased hereunder.
7.3 Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement: (a) Customer’s right to use and access the MyCAT Marketplace and the MyCAT Marketplace Services under this Agreement will be terminated; (b) all Credentials associated with Customer’s Authorized Users will be deactivated; (c) Customer will immediately discontinue use of the MyCAT Marketplace; (d) Customer will immediately pay all outstanding Fees due to HOMEE through the date of termination or expiration; and, (e) within seven (7) days upon payment of any outstanding Fees, or if no Fees are outstanding, HOMEE, upon request from Customer can deliver a then-current export of the Customer Data to Customer.
7.4 Survival. The rights and obligations of HOMEE and Customer contained in Sections 3 (Fees; Expenses; Taxes), 4 (Proprietary Rights), 5 (Confidentiality), 7.3 (Rights and Obligations Upon Expiration or Termination), 7.4 (Survival), 8 (Indemnification), 9 (Limitation of Liability), and 10 (General) will survive any expiration or termination of this Agreement.7.5 Suspension of the MyCAT Marketplace Services. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, HOMEE reserves the right to suspend provision of the MyCAT Marketplace Services: (a) if any Fees are thirty (30) days or more overdue (and are not otherwise subject to Section 3.4 (Payment Disputes)); (b) if HOMEE deems such suspension necessary as a result of Customer’s breach of Section 2.6 (Restrictions and Acceptable Use); (c) if HOMEE reasonably determines suspension is necessary to avoid material harm to HOMEE or its other customers, including if the MyCAT Marketplace is experiencing denial of service attacks, mail flooding, or other attacks or disruptions outside of HOMEE’s control; or (d) as required by law or at the request of governmental entities.
8.1 Indemnification by HOMEE. HOMEE will defend Customer, its officers, directors and employees, and agents from and against any suit or action brought by a third-party against Customer: (a) alleging that the MyCAT Marketplace Services, as provided by HOMEE and when used by Customer pursuant to this Agreement, infringes any Intellectual Property Right of a third party (the “IP Indemnity”); or (b) resulting from unauthorized disclosure and misuse of Customer Data directly resulting from HOMEE’s breach of its obligations under Section 2.5 (Customer Data) or Section 2.7 (Information Security) (the “Data Indemnity”). HOMEE shall indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by HOMEE (including reasonable attorneys’ fees) resulting from such claim, provided that: (a) Customer provides HOMEE with prompt written notice of such claim; (b) Customer provides reasonable cooperation to HOMEE, at HOMEE’s expense, in the defense and settlement of such claim; and (c) HOMEE has sole authority to defend or settle such claim, provided that it may not settle any claim in a manner that imposes any material liability upon Customer or requires Customer to admit wrongdoing.
8.2 Injunctions. If Customer’s use of the MyCAT Marketplace Services is, or in HOMEE’s opinion is likely to be, enjoined due to the type of claim specified in Section 8.1(a), then HOMEE may at its sole option and expense: (a) replace or modify the MyCAT Marketplace Services to make them non-infringing and of equivalent functionality; (b) procure for Customer the right to continue using the MyCAT Marketplace Services under the terms of this Agreement; or (c) if HOMEE is unable to accomplish either (a) or (b) despite using its commercially reasonable efforts, terminate Customer’s rights and HOMEE’s obligation under this Agreement with respect to such MyCAT Marketplace Services and refund to Customer a pro-rata portion of the Fees paid for the remaining portion of the Term during which Customer would have had access to the MyCAT Marketplace Services.
8.3 Exclusions. Notwithstanding the terms of Section 8.1, HOMEE will have no liability for any claim of any kind to the extent that it results from: (a) the combination, operation or use of the MyCAT Marketplace with equipment, devices, or software not supplied by HOMEE, if a claim would not have occurred but for such combination, operation or use; or (b) Customer’s or an Authorized User’s use of the MyCAT Marketplace other than in accordance with this Agreement.
8.4 Sole Remedy. THE FOREGOING STATES HOMEE’S AND ITS LICENSORS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE MYCAT MARKETPLACE SERVICES.8.5 Indemnification by Customer. Customer will defend HOMEE, its officers, directors and employees, and agents from and against any action or suit brought against HOMEE by a third party based on a claim that the Customer Data infringes or violates the rights of a third party. Customer will indemnify and hold harmless HOMEE from and against any damages and costs awarded against HOMEE or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim, provided that (a) HOMEE provides Customer with prompt written notice of such claim; (b) HOMEE provides reasonable cooperation to Customer, at Customer’s expense, in the defense and settlement of such claim; and (c) Customer has sole authority to defend or settle such claim, provided that it may not settle any claim in a manner that imposes any material liability upon HOMEE or requires HOMEE to admit wrongdoing.
9.1 Exclusion of Damages. To the fullest extent permitted by law, except for Excluded Claims (as defined below in Section 9.3 and for which there will be no cap on liability), neither Customer nor HOMEE, and its Affiliates and suppliers, will be liable under this Agreement for (a) indirect, special, incidental, consequential, exemplary, or punitive damages; or (b) loss of use, data, business, revenues, or profits (in each case whether direct or indirect), even if the party knew or should have known that such damages were possible, even if a remedy fails of its essential purpose, and regardless of the type of action or theory of liability.
9.2 Total Liability. To the fullest extent permitted by law, except for Excluded Claims (for which there shall be no cap on liability) or Special Claims (which are subject to the Enhanced Liability Cap set forth in Section 9.4), neither party’s aggregate liability under this Agreement will exceed the amount paid by Customer to HOMEE during the twelve months prior to the event giving rise to liability.
9.3 Excluded Claims. “Excluded Claims” means: (a) any intentional misconduct or gross negligence by either party; (b) any amounts payable to third parties pursuant to HOMEE’s IP Indemnity obligations under Section 8.1(a); or (b) any amounts payable to third parties pursuant to Customer’s indemnification obligations under Section 8.5 (Indemnification by Customer).
9.4 Special Claims. “Special Claims” means (a) any breach by HOMEE of Section 2.5 (Customer Data), Section 2.7 (Information Security), or Section 5 (Confidentiality) resulting in unauthorized disclosure and misuse of Customer Data; or (b) any amounts payable to third parties pursuant to HOMEE’s Data Indemnity obligations under Section 8.1(a). For any and all Special Claims, HOMEE’s aggregate liability shall be subject to an enhanced liability cap not to exceed three times (3x) the amount paid by Customer to HOMEE during the twelve months prior to the event giving rise to liability (the “Enhanced Liability Cap”).
10.1 Governing Law. This Agreement will be governed by the laws of the State of Florida, 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 Tampa, FL. HOMEE 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.10.2 Order of Preference. In the event of a conflict between the MyCAT Marketplace Services Agreement and Order Form, the order of preference will be the MyCAT Marketplace Services Agreement, then the Order Form, unless the Special Contractual Terms section of the Order Form clearly specifies that it modifies the MyCAT Marketplace Services Agreement.
10.3 Waiver. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the party granting the waiver.
10.4 Notices. Notices will be sent to the addresses set forth in the Order Form. The notices will be deemed to have been given upon: (a) the date actually delivered in person; (b) the day after the date sent by overnight courier; (c) three (3) days following the date such notice was mailed by first class mail; or (d) the date sent by email to HOMEE at email@example.com or Customer at the Customer’s email address specified in the Order Form.
10.5 Dispute Resolution. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it shall provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within thirty (30) days after such notice, knowledgeable executives of the parties shall hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this section shall not apply to claims subject to indemnification under Section 8 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
10.6 Publicity. Subject to Customer’s trademark usage guidelines, Customer grants HOMEE a non-exclusive, worldwide, royalty free right to include Customer’s name and logo in any customer listing appearing on or in any HOMEE websites, brochures, fliers, presentations, and any other marketing materials in connection with identifying Customer as a customer of HOMEE. Upon Customer’s written request, HOMEE will promptly remove such marks from HOMEE’s website and, to the extent commercially feasible, HOMEE’s marketing materials. If HOMEE requests, Customer agrees to participate in a case study, press release and/or cooperate with HOMEE in speaking to the media, and to speak at a future HOMEE event.
10.7 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.
10.8 Force Majeure. Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Events"): (a) acts of God; (b) flood, fire, earthquake, epidemics, or pandemics; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order, law, actions or quarantines; (e) national or regional emergency; (f) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (g) any other similar events or circumstances beyond the reasonable control of the Impacted Party. The Impacted Party shall promptly provide written notice to the other Party indicating the nature, cause, date of commencement thereof, the anticipated extent of such delay and whether it is anticipated that any completion or delivery dates will be affected thereby and shall exercise due diligence to mitigate the effect of the delay.
10.9 Relationship Between the Parties. The relationship of the parties is that of independent contractors, neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of or bind the other party.
10.10 Assignment. Neither party may assign its rights or obligations under this Agreement without the other party’s prior written consent. Notwithstanding the foregoing, either party may assign its rights and obligations under this Agreement to an Affiliate as part of a reorganization, or to a purchaser of its business entity or substantially all of its assets or business to which rights and obligations pertain without the other party’s consent, provided that: (a) the purchaser is not insolvent or otherwise unable to pay its debts as they become due; (b) the purchaser is not a competitor of the other party; and (c) any assignee is bound hereby. Other than the foregoing, any attempt by either party to transfer its rights or obligations under this Agreement will be void.
10.11 Entire Agreement. This Agreement (including any Exhibits hereto) constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.
10.12 No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.
HOMEE SERVICE LEVEL AGREEMENT & TECHNICAL SUPPORT SCHEDULE
This HOMEE Service Level Agreement (“SLA”) & Technical Support Schedule (“TSS”) shall be governed by and incorporated by reference into the MyCAT Marketplace Services Agreement and the applicable Order Form entered into between the parties. All capitalized terms contained but not defined herein shall have the meaning ascribed to them in the Agreement.
MyCAT Marketplace Services - Service Level Agreement.
1.1 “Emergency Maintenance” means maintenance performed to fix critical functionality, vulnerabilities, or material defects that may substantially impair the usability or performance of the MyCAT Marketplace Services.
1.2 “Excused Maintenance” means Emergency Maintenance and Scheduled Maintenance.
1.3 “Scheduled Availability Time” means twenty-four (24) hours a day, seven (7) days a week, excluding: (a) Excused Maintenance, (b) any downtime due to defects caused by Customer, one of its vendors, third party connections, utilities, or equipment, or caused by other forces beyond the reasonable control of HOMEE (such as denial of service attacks, internet or third-party service outages or outages with respect to Customer’s network or internet access).
1.4 “Scheduled Maintenance” means any planned system maintenance of which HOMEE gives Customer at least twenty-four (24) hours or more notice; provided that any such planned downtime must be between the hours of 12:00 AM EST and 5:00 AM EST.
1.5 “Service Credits” are credits for which Customer may be eligible if HOMEE fails to meet the Target Uptime.
The availability of the MyCAT Marketplace Services per calendar month and corresponding Service Credits are set forth in the table below.
Availability Per Calendar Month
Less than 99.5% but equal to or greater than 99.0%
1% of the Annual Subscription Fee
Less than 99.0% but equal to or greater than 95.0%
2% of the Annual Subscription Fee
Less than 95.0%
3% of the Annual Subscription Fee
1.6 “Service Credit Request” means a request to HOMEE at firstname.lastname@example.org stating that Customer believes that HOMEE has failed to meet the Target Uptime.
MyCAT Marketplace Technical Support Schedule.