MuleSoft Expressway Services Gateway Support Agreement
This MuleSoft Expressway Services Gateway (“ESG”) Support Agreement (the "Agreement") sets forth the terms and conditions under which MuleSoft, Inc. ("MuleSoft") will provide technical support services for the MuleSoft ESG Software (“Support Services”) to the customer as set forth in the Order Form ("Company"). This Agreement applies only to Support Services for the MuleSoft ESG Software and not to any other MuleSoft service, software or product.
- 1. DEFINITIONS.
- 1.1 Confidential Information means all code, inventions, know-how, business, technical and financial information that one party (“Receiving Party”) obtains from the other party (“Disclosing Party”); provided that such information is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure; and provided further that any Materials or technical information provided by MuleSoft (or its agents), performance information relating to the Materials, and the terms of this Agreement shall be deemed Confidential Information of MuleSoft without any marking or further designation.
- 1.2 Materials means any and all materials for which Support Services are provided under this Agreement, including without limitation, all software and documentation.
- 1.3 Order Form means an order form which Company has received from MuleSoft which references this Agreement.
- 1.4 Support Services will have the meaning set forth in Section 2.1.
- 1.5 Term means the term as set forth in the applicable Order Form.
- 2. SUPPORT SERVICES.
- 2.1 MuleSoft Support. Subject to Company's payment of the Support Services fees set forth in the Order Form, MuleSoft will provide Company with Support Services for the Term and in accordance with the then-current MuleSoft ESG Support Policies and Procedures.
- 3. FEES AND PAYMENT.
- 3.1 Fees. The Support Services fees and any other applicable services fees are set forth in the Order Form. Company will pay such fees in accordance with the terms and conditions of this Agreement and any additional terms and conditions in the Order Form. If the parties agree to amend the Order Form by adding or deleting Support Services or any other services, the fees will also be amended as appropriate.
- 3.2 Payment Terms. Payment will be made net thirty (30) days from date of invoice or as provided in the Order Form. All payments will be nonrefundable except as otherwise expressly provided in this Agreement.
- 3.3 Defaults. If Company fails to make when due any payment(s) not subject to a good faith dispute, MuleSoft may, in its sole and absolute discretion and without consent from Company, (i) either alter terms of payment, (ii) alter the terms upon which it extends credit to Company, (iii) suspend credit, (iv) do any combination of the foregoing, and/or (v) pursue any and all remedies available at law or equity or otherwise under this Agreement. In such event, MuleSoft will be entitled to reimbursement from Company upon demand for all expenses incurred by MuleSoft in respect thereof, including, without limitation, reasonable attorneys' fees and costs. MuleSoft may charge and Company agrees to pay upon demand the lesser of 1½% per month or the highest lawful monthly rate on overdue invoices that are not subject to a good faith dispute.
- 3.4 Taxes. All payments will be made free and clear without deduction for any and all present and future taxes imposed by any taxing authority. In the event that Company is prohibited by law from making such payments unless Company deducts or withholds taxes therefrom and remits such taxes to the local taxing jurisdiction, then Company will duly withhold and remit such taxes and will pay to MuleSoft the remaining net amount after the taxes have been withheld. Company will promptly furnish MuleSoft with a copy of an official tax receipt or other appropriate evidence of any taxes imposed on payments made under this Agreement, including taxes on any additional amounts paid. In cases other than taxes referred to above, including without limitation, to sales and use taxes, stamp taxes, value added taxes, property taxes and other taxes or duties imposed by any taxing authority on or with respect to this Agreement, the costs of such taxes or duties will be borne by Company. In the event that such taxes or duties are legally imposed initially on MuleSoft or MuleSoft is later assessed by any taxing authority, then MuleSoft will be promptly reimbursed by Company for such taxes or duties plus any interest suffered by MuleSoft.
- 4. OWNERSHIP
- 4.1 MuleSoft and its suppliers will remain the sole owner(s) of all right, title and interest (including, without limitation, all copyrights, trade secrets, trademarks and patents) in the Materials and modifications or derivative works thereof created by or on behalf of MuleSoft. Company hereby acknowledges MuleSoft's and/or its suppliers' ownership of the copyright, trademark, patent, trade secret and any other intellectual property rights in the Materials.
- 5. WARRANTIES AND LIMITATIONS OF LIABILITY.
- 5.1 Warranty. MuleSoft represents and warrants that any Support Services provided to Company hereunder will be performed in a professional and workmanlike manner in accordance with customary industry standards and practices.
- 5.2 Exclusive Remedy. Company's exclusive remedy under this Section 5.1 with respect to the Support Services, and MuleSoft's sole responsibility in connection therewith, will be at MuleSoft's cost, to provide replacement Support Services to correct any nonconformity. IN NO EVENT WILL MULESOFT BE LIABLE FOR ANY OTHER COSTS ASSOCIATED WITH THE REPLACEMENT OR REPAIR OF SOFTWARE, INCLUDING LABOR, INSTALLATION, REMOVAL, SHIPPING OR ANY OTHER COSTS INCURRED BY COMPANY.
- 5.3 Limitations. The limited warranty in Section 5.1 will not apply: (i) where the problem cannot be reproduced by MuleSoft despite commercially reasonable efforts to do so; (ii) where the applicable Materials are not used in accordance with the documentation or this Agreement; (iii) if any part of the applicable Materials have been altered or modified without the prior written consent of MuleSoft; or (iv) where a defect in the applicable Materials has been caused by any malfunctioning equipment of Company or any third party.
- 5.4 NO OTHER WARRANTIES. EXCEPT AS PROVIDED IN SECTION 5, MULESOFT, ITS SUPPLIERS AND ITS LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY OR OTHERWISE, WITH RESPECT TO THE MATERIALS, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO MATERIALS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MULESOFT, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES WILL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. MULESOFT MAKES NO WARRANTY WITH RESPECT TO DEFECTIVE CONDITIONS OR NON-CONFORMITIES RESULTING FROM COMPANY'S USE, MISUSE, MISINSTALLATION, MISHANDLING, ACCIDENT OR ABUSE OF THE MATERIALS; OR ERRORS RESULTING FROM INCORPORATION OF THE MATERIALS INTO COMPANY'S OR COMPANY'S CUSTOMERS' SYSTEMS, OR FAILURE OF COMPANY OR COMPANY'S CUSTOMERS TO APPLY MULESOFT-SUPPLIED MODIFICATIONS, DIRECTIONS, UPDATES OR CORRECTIONS.
- 5.5 LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY, FOR ANY LOST PROFITS OR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MULESOFT'S TOTAL LIABILITY IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT, EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY COMPANY TO MULESOFT PURSUANT TO THIS AGREEMENT FOR THE PRECEDING TWELVE (12) MONTH PERIOD FROM THE DATE THE CLAIM AROSE. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER-INCIDENT. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- 6. CONFIDENTIALITY
- 6.1 Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). Each party will only disclose Confidential Information to its employees, agents, representatives and authorized contractors (collectively “Representatives”) having a need to know for the purposes of this Agreement. Each party will notify and inform such Representatives of each party's limitations, duties, and obligations regarding use, access to, and nondisclosure of Confidential Information and will obtain or have obtained its Representatives' agreements to comply with such limitations, duties, and obligations with regard to such Confidential Information no less restrictive than those contained herein. Each party is liable for all acts and omissions of the Representatives related to the other party’s Confidential Information. Each party agrees to give notice to the other party immediately after learning of or having reason to suspect a breach of any of the proprietary restrictions set forth in this Section. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
- 7. TERM AND TERMINATION.
- 7.1 Term. This Agreement is effective during the Term.
- 7.2 Termination For Cause. Upon prior written notice given in accordance with Section 8.3 ("Notice"), either party may terminate this Agreement if the other party (i) fails to pay any amount due under this Agreement (except for amounts that are disputed in good faith and for which Company is actively working to resolve such dispute) within thirty (30) days after written notice of such nonpayment, (ii) commits a material non-monetary breach of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days of a written notice of such breach, (iii) becomes the subject of any voluntary or involuntary proceeding under the U.S. Bankruptcy Code (other than a reorganization under Chapter 11) or state insolvency proceeding, and such proceeding is not terminated within sixty (60) days of its commencement. Upon termination of this Agreement by MuleSoft for cause: (a) all rights of Company, and obligations of MuleSoft hereunder will terminate; and (b) except as otherwise stated herein, all payments made by Company to MuleSoft hereunder are non-refundable.
- 7.3 Effect of Expiration or Termination; Survival. In the event of expiration of this Agreement, the following provisions will survive: Sections 1, 2, 3, 4, 5, 6 and 8.
- 8. GENERAL TERMS AND CONDITIONS.
- 8.1 Acceptance. None of the Support Services shall be subject to contractual acceptance, and all Support Services will be deemed accepted upon delivery.
- 8.2 Publicity. Neither party will use the other's name in any press releases or advertisement relating to the subject matter of this Agreement, either by direct mention or by inference, without the express written permission of the other. Furthermore, the content of any public statement made by or on behalf of any party which references the other party in relationship to this Agreement will require the prior written approval of the other party, which such party may grant or withhold in its discretion.
- 8.3 Force Majeure. Neither party will be liable for any failure to perform acts, other than payment obligations, due to unforeseen circumstances or causes beyond the party's reasonable control, including without limitation, acts of God, war, riot, embargoes, acts of civil or military authorities, acts of terrorism or sabotage, electronic viruses, worms or corrupting microcode, shortage of supply or delay in delivery by MuleSoft's vendors, fire, flood, earthquake, accident, strikes, radiation, inability to secure transportation, failure of communications or electrical lines, facilities, fuel, energy, labor or materials. In an event of force majeure, either party's time for delivery or other performance will be extended for a period equal to the duration of the delay.
- 8.4 Notice. All notices required or permitted to be given hereunder will be in writing, will make reference to this Agreement, and will be delivered by hand, or dispatched by prepaid air courier or by registered or certified airmail, postage prepaid, addressed as follows:
Notices to MuleSoft:
77 Geary Street, Suite 400
San Francisco, CA 94108
Attn: General Counsel
Notices to Company:
To the address noted on the signature page of this Agreement
Such notices will be deemed served when received by addressee or, if delivery is not accomplished by reason of some fault of the addressee, when tendered for delivery. Either party may give written notice of a change of address and, after notice of such change has been received, any notice or request will thereafter be given to such party at such changed address.
- 8.5 Remedies. The remedies set forth in this Agreement are in addition to those available at law or in equity. All rights and remedies, legal or equitable, whether conferred hereunder, or by any other instrument or law will be cumulative and may be exercised singularly or concurrently.
- 8.6 Export. Neither party will export, either directly or indirectly, any product, service or technical data or system incorporating the foregoing (collectively "Items") such Items without first obtaining any required license or other approval from the U. S. Department of Commerce or any other agency or department of the United States Government. In the event any Item is exported from the United States or re-exported from a foreign destination by either party, that party will ensure that the distribution and export/re-export or import of such Item is in compliance with all applicable laws, regulations, orders, or other restrictions of the U.S. Export Administration Regulations and the appropriate foreign government. Both parties agree that neither it nor any of its subsidiaries will export/re-export any Item or service, directly or indirectly, to any country for which the United States government or any agency thereof or the foreign government from where it is shipping requires an export license, or other governmental approval, without first obtaining such license or approval.
- 8.7 Assignment. This Agreement will be binding upon and inure to the benefit of the parties hereto and their permitted successors and permitted assigns. Notwithstanding the foregoing, neither this Agreement, nor any rights or obligations hereunder, may be assigned or otherwise transferred by either party without the prior written consent of the other party, provided however that either party may assign all or any of its rights or delegate all or any of its obligations under this Agreement to any entity to whom it transfers all or substantially all of its assets or rights as part of a corporate reorganization, merger or sale of all or substantially all of its assets, so long as the acquiring party agrees to be bound by all the terms and conditions of this Agreement, and MuleSoft may assign all or any of its rights or delegate all or any of its obligations under this Agreement to a subsidiary or affiliate of MuleSoft or other successor entity or any of its divisions, without the prior consent of Company. Any other assignment or transfer without prior written consent will be voidable at the option of the non-consenting party.
- 8.8 Relationship of Parties. The parties hereto are independent contractors. Neither party has any express or implied right or authority to assume or create any obligations on behalf of the other or to bind the other to any contract, agreement or undertaking with any third party. Nothing in this Agreement will be construed to create a partnership, joint venture, employment or agency relationship between Company and MuleSoft.
- 8.9 Severability. The terms and conditions stated herein are declared to be severable. If any paragraph, provision, or clause in this Agreement will be found or be held to be invalid or unenforceable in any jurisdiction in which this Agreement is being performed, the remainder of this Agreement will be valid and enforceable and the parties will use good faith to negotiate a substitute, valid and enforceable provision which most nearly effects the Parties' intent in entering into this Agreement.
- 8.10 Waiver. Failure by either party to enforce any term of this Agreement will not be deemed a waiver of future enforcement of that or any other term in this Agreement or any other agreement that may be in place between the parties.
- 8.11 Dispute Resolution. All disputes arising directly under the express terms of this Agreement or the grounds for termination thereof will be resolved as follows: The senior management of both parties will meet to attempt to resolve such disputes. If the senior management cannot resolve the disputes, either party may make a written demand for formal dispute resolution and specify therein the scope of the dispute. Within thirty days after such written notification, the parties agree to meet for one day with an impartial mediator and consider dispute resolution alternatives other than litigation. If an alternative method of dispute resolution is not agreed upon within thirty days after the one-day mediation, either party may exercise its remedies at law or equity.
- 8.12 Governing Law and Jurisdiction. Any claim arising under or relating to this Agreement will be governed by the internal substantive laws of the State of Delaware, without regard to principles of conflict of laws. Each party hereby agrees to jurisdiction and venue in the courts of the State of Delaware or federal courts located in Delaware for all disputes and litigation arising under or relating to this Agreement, and this Agreement will be considered to have been signed in the United States by both parties. The parties agree that the terms of the United Nations Convention on Contracts for the International Sale of Goods (CISG) do not apply to this Agreement. This provision is meant to comply with 6 Del. C. Section 2708(a).
- 8.13 Compliance with Laws. Notwithstanding anything contained in this Agreement to the contrary, the obligations of the parties will be subject to all applicable laws, present and future, of any government having jurisdiction over the parties, and to orders, regulations, directions or requests of any such government.
- 8.14 Entire Agreement. The terms and conditions of this Agreement, including the Order Form and any Exhibits and Addenda, constitute the entire agreement between the Parties with respect to the subject matter hereof, and merge and supersede all prior and contemporaneous agreements, understandings, negotiations and discussions. Neither of the parties will be bound by any conditions, definitions, warranties, understandings, or representations with respect to the subject matter hereof other than as expressly provided in this Agreement. The section headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. No oral explanation or oral information by either party hereto will alter the meaning or interpretation of this Agreement. No amendments or modifications will be effective unless in writing and signed by authorized representatives of both parties. The terms and conditions of this Agreement will prevail in the event of any conflict with any Order Form hereto, unless expressly stated otherwise. This Agreement will prevail notwithstanding any different, conflicting or additional terms and conditions which may appear on any purchase order, acknowledgment or other writing not expressly incorporated into this Agreement. Any Company purchase order referencing this Agreement will be subject to and governed by the terms of this Agreement, and any additional or conflicting terms will be deemed deleted from the purchase order.