MainSpring shall provide to Client data protection services in accordance with SCHEDULE A. Term/termination This Agreement shall be in effect for a one (1) year term and automatically renewed for subsequent one (1) year terms commencing on the one (1) year anniversary of the Effective Date. Client may terminate the contract prior to the automatic renewal date (effective date on the contract) by submitting a written thirty (30) day notice of cancellation. Upon cancellation, all MainSpring provided equipment must be returned. Failure to return MainSpring’s equipment in a timely manner will result in charges, to cover the cost associated to with replacing the unreturned equipment. Client agrees to pay such charges whether the equipment is unreturned, lost, stolen or destroyed. Either party may terminate this agreement immediately if the other party becomes insolvent, or bankrupt, liquidated or dissolved, or ceases substantially all its business. Neither party shall be liable for damages resulting from a termination of this agreement as provided for herein.
Fees will be calculated based upon the information provided in SCHEDULE A. Fees are billed monthly, in advance and commencing on the Effective Date; if Effective Date is other than 1st of the month, prorated fees for initial month and next month will be billed in advance. A finance charge of 1.5% per month (18% per year) will be assessed on any unpaid balance remaining after due date. Fees stated in this Contract are subject to increase each year. MainSpring reserves the right to refuse or suspend service under this Agreement in the event Client has failed to keep the account current. Fees will be calculated based upon the information provided in SCHEDULE A and can vary each month based on actual tier usage. All hardware and software are property of MainSpring and will be returned in functioning condition upon termination of contract. MainSpring reserves the right to increase the contract up to 3% per year.
MainSpring shall establish an online storage and backup account in the name of Client (the “Client Account”) to receive, via the Internet, and store Client files (the “Client Files”). Pursuant to MainSpring instructions, Client shall choose an Encryption Key and Password for use in connection with the Services and for access to user files. The Software shall be designed to permit access to Client Files only with a valid Encryption Key and Password. MainSpring shall have the right to block or suspend Client’s access to the Software, or the Services as MainSpring may, in its reasonable discretion, deem necessary to preserve the security and integrity of the Software and the Services, including, without limitation, upon any of the following circumstances: (i) full or partial failure of the Software or the Services, (ii) a breach in the security of the Software or the Services, or (iii) a breach by Client of any of Client’s obligations under this Agreement and in accordance with SCHEDULE A.
MainSpring hereby grants Client a personal, non-exclusive, non-transferable license, without right of sub-license, to access and use the Software and Documentation.
Each party represents and warrants to the other that (i) it has all necessary authority to enter into and perform its obligations under this agreement without the consent of any third party, and (ii) that it shall comply in all material respects with all laws applicable to the performance of the Services. THE PARTIES HERETO MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SUBJECT MATTER OF THIS AGREEMENT.
Client shall not, directly or indirectly: (i) create or enable the creation of derivative works, modifications, or adaptations of the Software or Documentation; (ii) decompile, reverse engineer or disassemble the Software; (iii) distribute or disclose the Software or Documentation to third parties; (iv) remove or modify any copyright, trademark, patent or other proprietary marking or restrictive legends placed on the Software or Documentation; (v) use any automatic device or program or manual process to monitor, copy or reproduce the Software or Documentation; (vi) modify the Software or Documentation or interfere with the proper operation of the Software or the use of the Software by third parties; or (vii) use the Software in violation of any applicable local, state, national or international law or regulation.
MainSpring shall be excused from performing its obligations under this Agreement if its performance is delayed or prevented by any event beyond such party’s reasonable control, including, but not limited to, acts of God, fire, explosion, weather, disease, war, insurrection, civil strife, riots, government action, or power failure.
Client shall retain all right and title in and to the Client files, including any proprietary rights in the Client Files. MainSpring shall not transfer, sell, disclose, license, alter or otherwise use the Client files other than to provide the Services as contemplated by this Agreement. MainSpring shall have the right to make copies of Client files stored in connection with the services, however, MainSpring is not obligated to archive such copies and will utilize them only for backup purposes.
The Client hereby agrees not to solicit, recruit, hire or otherwise to retain the services of any MainSpring, Inc. employee except through MainSpring, Inc. Should the Client do so, as compensation for the cost to MainSpring, Inc. of its investment in and/or training of and/or loss of services of the said employee, the Client agrees to pay the Company a sum equal to one year’s maximum billable revenue for such employee.
IN NO EVENT SHALL EITHER PARTY HERETO BE LIABLE TO THE OTHER OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT, THE PERFORMANCE OR NONPERFORMANCE BY EITHER PARTY OF ITS OBLIGATIONS HEREUNDER AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
This agreement, including the selections on the SCHEDULE A, shall constitute the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements with respect to same.
