Notice:  We last updated our Master Services Agreement on November 24, 2017.

By using any of the products and services (“Services” or individually “Service”) of Modus Engagement, Inc. (together with its affiliates, “Modus”), you agree to this Master Services Agreement (“Agreement”). “You” or “Customer” means the entity you represent (or your affiliates and any authorized users). Modus and Customer shall be referred to collectively as “Parties,” or individually as “Party.”  If you do not agree with the terms of this Agreement, you may not use the Services. This Agreement is effective for each Service as of the earliest of Customer’s submission of an order or first use of such Service (the “Effective Date”).

Incorporation of Ancillary Agreements.  This Agreement incorporates by reference all of the other ancillary addenda and exhibits, including the Modus Terms of Use (collectively “Ancillary Documents”) that this Agreement identifies as applicable.  Because Services are continuously evolving, Modus may update any of the Ancillary Documents from time to time and such updates will be applicable at the time of modification. Capitalized terms used in this Agreement that are not otherwise defined herein have the meaning set forth in the Terms of Use.  All references applicable to a “User” in the Terms of Use apply to Customer

Subscriptions and Orders.  Some of Modus’ Services are sold on a subscription basis (“Subscription”), some are sold on a time and materials basis, and others may be sold on a limited “trial” basis.  Modus may provide written or website descriptions of its Services, details regarding the term of each subscription or trial, and other terms applicable to the Services. (each a “Quote”).  An “Order” means the ordering document, signed Quote, or online submission that you issue to Modus in response to a Quote.  No Order may modify the terms of any Quote or the terms of this Agreement without Modus’ express written consent. In the event of a conflict between the terms of this Agreement and any Order, the terms of this Agreement shall control unless the Order explicitly states that such conflicting terms in this Agreement shall not apply.  Orders for access to Services on a trial basis may impose limitations or restrictions on Customer’s use of such Services in addition to those set forth below.

Limited License to Access and Use Service Under Subscription or Trial. Upon timely payment by Customer of all amounts due under the applicable Order and provided that Customer is not otherwise in default of its obligations under this Agreement, Modus shall grant to Customer and its authorized Users (except as otherwise specifically provided in any applicable Order) a nonexclusive, worldwide, personal, royalty-free, non-sublicensable and nontransferable license (“License”) to access the applicable Services and any software that is distributed in conjunction with the Service, solely in object code format. Customer may access and use the Services only during the term of a current subscription or trial, and only for its own internal business operations, including support for its sales and marketing activity, and for no other purpose. Customer shall not use the Services to perform operations for other parties. Customer’s use shall be in accordance with Modus instructions, online knowledge base, and user manuals made available from time to time.

Modus reserves the right, at any time, to modify the Services and features thereof (including occasional removal or substitution of functionality).  If Customer purchases Services on a trial basis, Customer acknowledges that its use is for evaluation basis, and such Services are provided “As Is” without warranty or support services of any kind.

Ancillary Services. Modus may perform Services that are ancillary to a subscription (such as professional services or integration services), as detailed in an Order or statement of work.  Such Services will be invoiced separately.

Customer Content. Customer shall retain all ownership rights to all content and materials, including marketing materials, product information, and sales and marketing information, which Customer provides to Modus and/or generates through the Services (“Customer Content”). Customer may not use Customer Content in connection with the Services that violates law or third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy, or violates any user terms we may publish.  For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

To the extent that Customer Content contains music or artwork, Customer hereby represents that it is the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such Customer Content and has the power to publish such music or art to Modus and through the Services.  Modus reserves the right, but is not obligated, to reject and/or remove any Customer Content that Modus believes, in its sole discretion, violates these provisions.

Customer Users/Third Party Access. Customer is responsible for all actions of its agents, employees, and subscribers (“Users”) accessing and using the Service, including, without limitation, using any user name, password, or other login credentials assigned to such User or Customer’s administrators. Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service and shall notify Modus promptly of any such unauthorized use of which it becomes aware. In no event will Modus be liable to Customer or anyone else for any decision made or action taken by persons in reliance on news and information provided within the “User Content” portion of any applicable Service. Customer may authorize third parties to assist Customer in the management, editing, and hosting of product information created by use of the Services, provided that: (1) such activities are within the scope of the activities Customer is itself authorized to perform under this Agreement; (2) such third party’s acts are primarily for the direct or indirect benefit of Customer; and (3) such third parties are not charged a fee by Customer for such activities. Except as expressly provided in this Agreement, no third party has any rights under this Agreement. Customer is fully liable for any unauthorized use of the Services by third parties caused by any acts or omissions of Customer.

Customer Responsibilities. Customer represents and warrants that Customer shall comply with applicable law with respect to the Services, that it has the right to use the Customer Content including any publication of such Customer Content facilitated through the Services, and that Customer is duly authorized to enter into this Agreement. Customer shall defend, indemnify and hold harmless Modus, all individuals or entities controlling, controlled by or under common control with Modus (each, a “Modus Affiliate”), and the officers, directors, attorneys and employees of Modus and each Modus Affiliate (each an “Indemnified Party”) against any losses, claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, “Losses”) to which an Indemnified Party may become subject that arise out of, or relate to (i) Customer’s use of the Service, (ii) Customer’s infringement or misappropriation or alleged infringement or misappropriation of any Intellectual Property Rights, (iii) Customer Content, (iv) User Data (defined below), including any  claims that such data is obscene or otherwise inappropriate, or (v) any gross negligence or willful misconduct of Customer. Customer shall reimburse an Indemnified Party for all legal and other expenses, including, without limitation, reasonable attorneys’ fees incurred by such Indemnified Party in connection with investigating, defending or settling any Losses.

User Data.  Customer is solely responsible for providing notices and  obtaining all consents as may be required by law to collect, use, disclose or submit any personal data using the Services (including disclosure of such information to Modus for purposes of performing the Services), including personal information of Customer’s Users and personal data of prospects and clients of Customer (“User Data”).  Customer shall post, and is solely responsible for posting, all applicable privacy policies or notifications on its own websites or in conjunction with its products and services. Customer shall not collect or cause to be collected and shared with Modus or hosted on Modus’ servers certain types of personal information that could trigger state breach notification laws in the event the information is accessed by an unauthorized person, including, but not limited to, health information, Social Security Numbers, driver’s license numbers, bank account or credit card numbers.  If such information is shared with Modus or hosted on Modus’ servers in a manner that Modus deems to be insecure, Modus has the right, but not the obligation, in its sole discretion to delete and remove any personal information stored on its systems that it deems to be stored in an unsecure manner. In the event that an incident of unauthorized access or disclosure of such data triggers state breach notification laws because of Customer’s breach of this section, Customer will be wholly responsible for the timing, content, cost and method of any such notice and compliance with such laws.

Customer hereby grants to Modus and the service providers Modus uses to assist in providing the Services the right to use, modify, reproduce, distribute, display and disclose Customer Content and User Data solely to the extent necessary to provide the Services and fulfil its obligations under the Agreement, including, without limitation, in response to Customer’s support requests.  In addition, Modus (and its service providers operating on its behalf) may aggregate User Data so that it is no longer personally identifiable, and use such aggregated data in order to improve Modus products and services and other business purposes, so long as such use does not disclose any confidential information of Customer. Modus owns aggregated data.  Modus also collects account related data during Customer’s purchase and use of Services and uses it to provide Services, bill for Services, advise Customer of new offerings, and comply with contracts and law. Modus may retain account related data.

Modus Content. Modus shall retain all ownership rights to all Modus Content (as defined in the Terms of Use) and other Intellectual Property Rights and technology relating to the Services. The parties hereto agree and acknowledge that neither the Services nor any deliverables are or shall be construed as “works made for hire” under the U.S. Copyright Act, 17 U.S.C. Sec. 101.  Modus may place copyright and/or proprietary notices, including hypertext links within and on the Services. Customer may not alter or remove such notices or text without Modus’ written permission. Customer acknowledges that Modus has the right, in its sole discretion, to modify the Service at any time during the term of the Subscription for a specific Order, including through enhancements to the underlying software, other technology, offered features, or otherwise.

Restrictions.  Except as expressly authorized by Modus in writing, Customer shall not copy, in whole or in part, any Modus Content; modify, disassemble, decompress, reverse compile, reverse assemble, reverse engineer, or translate any portion of the Modus Content; or rent, lease, lend, distribute, sell, assign or otherwise transfer the Modus Content or create derivative works of the Modus Content.  Customer may only copy manuals or instructions from Modus for the purpose of use in furtherance of Customer’s business purposes, internally within Customer’s organization and including its distributors and other parties authorized by Modus. Modus reserves the right to suspend Customer’s access to the Services in the event of any alleged breach of these restrictions.

Third Party Integrations. Access to Services includes access to basic connections to standard Customer systems and integrations to common third party tools and systems as described by Modus from time to time. Modus is not responsible for the operation of any third party system, or any of Customer’s systems, and Customer is fully responsible for and represents and warrants that it has all necessary rights to use and allow integrations between the Services and any such Customer or third party systems.  Modus will cooperate through provision of open APis and may be willing to offer ancillary services under terms set forth under separate Orders or statements of work to create additional integrations at Customer’s request.

Support and Maintenance. Modus will use commercially reasonable efforts to make the Services available to Customer during normal weekday business hours (excluding holidays) and generally will respond to inquiries within 3 business hours.

Customer accepts all risk and responsibility of the consequences caused by not installing the most recent version of the Modus app or otherwise failing to follow Modus instructions regarding access to and use of the Services.  Modus provides Customer with access to online tutorials and other resources to assist Customer in utilizing the Services.

Confidentiality.  A party receiving (“Receiving Party”) shall not disclose or use any non-public information (“Confidential Information”)  received from the other party (“Disclosing Party”) for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.  The Receiving Party may disclose Confidential Information of the Disclosing Party to the Receiving Party’s employees, agents and advisors who are under appropriate duties of confidentiality,  solely for the purposes of assisting such Party in its performance hereunder and shall be responsible for their use.  Confidential Information excludes information that i) is or becomes generally available to the public through no act or failure to act by the Receiving Party;  ii) was already in the Receiving Party’s possession at the time of its disclosure; iii) is subsequently disclosed to the Receiving Party on a non-confidential basis by a third party without violating any obligation of secrecy relating to the information disclosed; or iv) is independently developed by the Receiving Party without making use of or relying upon the Confidential Information. A Receiving Party may disclose Confidential Information in response to a court order or subpoena, provided that it uses its reasonable efforts to gives the other Party written notice in advance of such disclosure sufficient to permit the other to seek a protective order, and only discloses the minimum amount necessary to comply with the order or subpoena.   Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). This obligation shall exist while this Agreement is in force and for a period of one (1) years thereafter.

Data Protection.  Modus will process any personally identifiable data within User Data as a data processor acting on behalf of Customer, solely in accordance with Customer’s instructions and in accordance with the requirements of this Agreement and applicable law.  Modus does not assume any responsibility for determining the purposes for which and the manner in which any User Data is processed.   Modus will use appropriate technical, administrative and physical security measures to protect against accidental or unauthorized destruction, loss, alteration or disclosure of such personally identifiable data.  To the extent that Customer is deemed a data exporter and Modus a data importer under European Union Directives 95/46/EC and 2002/58/EC and any national implementation thereof, or when effective, the General Data Protection Directive, the terms of the Data Processing Addendum and Exhibits (including the Standard Contractual Clauses)  are incorporated herein with respect to any personally identifiable data originating in the European Economic Area or Switzerland   Customer is fully responsible for its own compliance with applicable data protection laws applicable to its collection, use, and disclosure of User Data.

Marketing. Modus may publicly reference Customer in Modus marketing materials, including on its websites and in case studies. Customer hereby grants Modus the worldwide right to use and depict Customer’s business name, trademarks and logos as a customer reference for such purposes.

Fees and Payment. Modus will invoice Customer for the fees stated in a Quote after acceptance of an Order.  Customer shall pay the fee amounts set forth in each applicable Order to Modus (including any variable, volume based, time and materials based, or use-based fees as set forth in the applicable Order) within 30 days, or such other date as set forth on the invoice. Such consideration may be an annual subscription fee, fixed amounts, transaction fees, hourly charges or other form of compensation as specified in the applicable Order. Unless explicitly stated otherwise in the Order, all fees are non-refundable. For annual fees, Customer is liable for the full annual fee upon the Effective Date and each anniversary thereof, regardless of whether such fee is paid in full at such time or Modus allows it to be paid through installment payments over the term of the Subscription. Modus reserves the right to increase the annual fee and other fees upon giving Customer not less than 60 days prior notice.  Customer shall have paid the applicable fees in full at the time Customer accepted this Agreement, or, if applicable, Modus shall invoice Customer or collect installment payments from Customer’s credit card or other account as described in the applicable Order. Any additional charges, including, without limitation, any costs, expenses, disbursements, accrued interest, late fees and any other charges may be invoiced in arrears and appear on monthly invoices. In all cases, payments for charges are due upon receipt by Customer of the invoices for such charges in United States dollars. In addition to any other remedies that may be available to Modus under this Agreement or applicable law, any balance that is not paid in full 30 days after receipt by Customer of the invoice therefor shall be subject to interest at the lesser of 1.5% per month or the highest amount permitted by law, based on the actual number of days outstanding.  Customer shall be liable for, and shall reimburse Modus and indemnify and hold Modus harmless from all local, state, federal and non-United States taxes or similar assessments or charges (including any interest and penalties imposed thereon), other than taxes based on the net income of Modus, arising out of, or relating to this Agreement.

Term and Termination.  This Agreement shall remain in effect until the later of (a) the end of the period set forth in the preamble, if any, as the term; or (b) the termination or expiration of all Orders accepted by Modus under this Agreement. The term of each Subscription shall be set forth in the Quote or invoice, and any renewal will be as described therein.  Either Party may terminate a Subscription effective by giving written notice of termination to the other Party at least 30 days prior to the expiration of the initial term of such Subscription, or anniversary thereof, as the case may be.

Either Party may terminate this Agreement at any time on notice if there are no Orders then in effect.

Either Party may terminate this Agreement immediately by written notice if the other Party materially breaches this Agreement and does not cure the breach within 30 days of receiving notice describing the breach.

Either Party may terminate this Agreement immediately by written notice if the other Party becomes insolvent, files bankruptcy, or becomes the subject of a receivership or other liquidation.

Termination of this Agreement will terminate any Orders then in effect.

Upon the expiration or termination of this Agreement for any reason, those sections that by their nature are intended to survive any termination shall survive, and the Parties’ rights and responsibilities thereunder shall remain in full force and effect.

Upon termination, Customer shall cease using the Services; provided that unless this Agreement was terminated on Customer’s uncured breach, Customer will have sixty (60) days from the date of termination to download any Customer Content and/or User Data. Upon termination each Party shall return, or at the other Party’s option, destroy, any Confidential Information of the other Party; provided that it may maintain one copy solely to demonstrate its compliance with its obligations under this Agreement.

Warranties/Disclaimers and Limitations. Subject to the terms of this Agreement Modus warrants that it will use commercially reasonable efforts to provide Services on an uninterrupted basis during the term of a Subscription for a specific Order. MODUS MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, REGARDING THE SERVICES. MODUS AND ITS LICENSORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE OR UNINTERRUPTED USE AND/OR NON-INFRINGEMENT.  EXCEPT FOR MATTERS FOR WHICH A PARTY HAS AN INDEMNIFICATION OBLIGATION TOWARDS THE OTHER UNDER THIS AGREEMENT AND CUSTOMER’S PAYMENT OBLIGATIONS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY SHALL EXCEED THE AMOUNTS PAID UNDER THIS AGREEMENT DURING A 12 MONTH PERIOD PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. IN ADDITION NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, DAMAGES DUE TO LATE DELIVERY, OR FOR ANY INDIRECT (WHICH INCLUDES BUT IS NOT LIMITED TO I) ANY FINANCIAL DAMAGES AS A RESULT OF PROPERTY DAMAGES, AND/OR II) ANY PURELY FINANCIAL DAMAGES), SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, INCLUDING LOSS OR CORRUPTION OF DATA OR CONTENT.

General.  The Services are of United States origin and are provided subject to U.S. Export Administration Regulations and may be subject to export control laws.  Customer may not access Services or allow any User to access Services if such person or entity is on a denied party or similar list, or is a resident or citizen in a country to which the United States has prohibited export transactions. Nothing in this Agreement or in the course of dealing between Modus and Customer pursuant hereto shall be deemed to create between Modus and Customer (including their respective directors, officers, employees and agents) a partnership, joint venture, association, employment relationship or any other relationship other than that of independent contractors with respect to each other. If the performance of this Agreement or any obligation hereunder (except the payment of monies due hereunder) is prevented, restricted or interfered with by reason of any event or condition beyond the reasonable control of such party (including, without limitation, acts of state or governmental action, international or domestic terrorism, riots, disturbance, war, fire, explosion, flood, hurricane, typhoon, earthquake or other act of God), the party so affected shall be excused from such performance, only for so long as and to the extent that such a force prevents, restricts or interferes with such party’s performance and provided that the party affected gives notice thereof to the other party and uses diligent efforts to remedy such event or condition.  This Agreement will be governed by the laws of the State of Minnesota, without regard to its provisions on conflicts of laws, and any disputes arising under or related to this Agreement or any Order shall be brought solely in courts located in the State of Minnesota.  This Agreement may be amended or modified, and any of the terms, covenants, representations, warranties, or conditions hereof may be waived, only by a written instrument that specifically references the amendment of this Agreement and which is executed by the parties hereto, or in the case of a waiver, by the party waiving compliance. Any waiver by any party of any condition, or of the breach of any provision, term, covenant, representation, or warranty contained in this Agreement, in any one or more instances, shall not be deemed to be nor construed as further or continuing waiver of any such condition, or of the breach of any other provision, term, covenant, representation, or warranty of this Agreement. If one or more of the provisions contained in this Agreement are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected and the invalid provision will be amended to achieve as nearly as possible the same economic effect as the original provision. This Agreement (including all Ancillary Documents), together with any Quote and Order that references this Agreement, constitutes the entire agreement between Customer and Modus with respect to the subject matter hereof and supersedes any and all previous or contemporaneous oral or written understandings, quotations, communications, agreements and understandings with respect to the subject matter hereof.