Modulus Data Master Hosting Service Agreement

Effective starting: November 1st, 2014

This Modulus Data Customer Agreement (the “Agreement”) is between Customer (the “Customer”) and Modulus Data Inc. (“Modulus Data”). If Customer is agreeing to this Agreement not as an individual but on behalf of a company, then “Customer” means the company that the signee represents, and signee is binding his company to this Agreement. Modulus Data may modify this Agreement from time to time, subject to the terms in Section 22 (Changes to this Agreement) below.


1. Scope of the Agreement

This master agreement covers the general terms and conditions under which Modulus Data (Modulus Data) provides it’s integration platform as a service (iPaaS) solution to Customer. Modulus Data’s hosted service is used by Customer to transfer and transcode data to and from different data processing services hosted on Customer’s managed premisses and/or on third party infrastructures.

Some words used in the Agreement have particular meanings:

Customer’s License Rights. Subject to the terms and conditions of this Agreement, Modulus Data grants Customer a non-exclusive, non-sublicenseable and non-transferable license to use the Software during the applicable License Term in accordance with this Agreement, Customer’s applicable Scope of Use, and the Documentation. The term of each Software license (“License Term“) is specified in Customer Contract. Customer’s License Term will end upon any termination of this Agreement, even if it is identified as “perpetual” or if no expiration date is specified in Contract.

Customer Modifications. Subject to the terms and conditions of this Agreement (including without limitation Section A.2 (Combining the Products with Open Source Software) of Appendix A: Third Party Code in Modulus Data Products): (1) for any elements of the Software provided by Modulus Data in source code form, and to the extent permitted in the Documentation, Customer may modify such source code solely for purposes of developing bug fixes, customizations and additional features for the Software and (2) Customer may also modify the Documentation to reflect it’s permitted modifications of the Software source code or the particular use of the Products within it’s organization. Any modified source code or Documentation constitutes “Customer Modifications“. Customer may use Customer Modifications solely with respect to it’s own instances in support of it’s permitted use of the Software but Customer may not distribute the code containing Customer Modifications to any third party. Notwithstanding anything in this Agreement to the contrary, Modulus Data has no support, warranty, indemnification or other obligation or liability with respect to Customer Modifications or their combination, interaction or use with Modulus Data Products. Customer shall indemnify, defend and hold Modulus Data harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against Modulus Data by a third party relating to Customer Modifications (including but not limited to any representations or warranties Customer makes about Customer Modifications or the Software) or Customer’s breach of this Section 2 (Customer Modifications). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation of Modulus Data at Customer expense.

Attribution. In any use of the Software, Customer must include the following attribution to Modulus Data on all user interfaces in the following format: “Powered by Modulus Data,” which must in every case include a hyperlink to https://www.modulusdata.com, and which must be in the same format as delivered in the Software.

2. Glossary of Terms

Third Party Code. The Software includes code and libraries licensed to us by third parties, including open source software. See Appendix A: Third Party Code in Modulus Data Products for additional provisions regarding Modulus Data’s use of third party code.

3. Hosted Services Terms

3.1. Access to Hosted Services

Subject to the terms and conditions of this Agreement, Modulus Data grants Customer a non-exclusive right to access and use the Hosted Services during the applicable Subscription Term (as defined below) in accordance with this Agreement, Customer’s applicable Scope of Use and the Documentation. If Modulus Data offers client software (e.g., a desktop or mobile application) for any Hosted Service, Customer may use such software solely with the Hosted Service, subject to the terms and conditions of this Agreement. Customer acknowledges that the Hosted Services are on-line, subscription-based products and that Modulus Data may make changes to the Hosted Services from time to time.

3.2. Subscription Terms and Renewals

Hosted Services are provided on a subscription basis for a set term specified in Customer Contract (“Subscription Term“). Except as otherwise specified in Customer Contract, all subscriptions will automatically renew for periods equal to the initial Subscription Term (and Customer will be charged at the then-current rates) unless Customer cancels his subscription. In case of cancellation, the subscription will terminate at the end of then-current billing cycle, but Customer will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.

3.3. Credentials

Customer must ensure that all Authorized Users keep user IDs, passwords and certificates providing access to the Hosted Services strictly confidential and not share such information with any unauthorized person. User IDs granted to individual, named persons may not be shared. Credentials (ids, passwords, certificates) that are to be used by systems and applications to access Modulus Data services must be protected from unauthorized access. Customer is responsible for any and all actions taken using it’s credentials and agrees to immediately notify Modulus Data of any unauthorized use of which he becomes aware.

3.4. Customer Data

Customer Data” means any data, content, code, video, images or other materials of any type that Customer uploads, submits, transfers or otherwise transits to or through Modulus Data Hosted Services. Customers retains all right, title and interest in and to His Data in the form provided to Modulus Data. Subject to the terms of this Agreement, Customer hereby grants to Modulus Data a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Customer Data, in each case solely to the extent necessary to provide the applicable Hosted Service to Customer and (b) for Hosted Services that enable Customer to share His Data or interact with other people or systems. Modulus Data authorized personnel may access Customer account, instance and content in order to respond to Customer support requests.

3.4.1. General

Modulus Data services do not retain or use customer data for any other purpose than that for which the hosted service is retained by Customer. Customer retains control over and ownership of his own data which always resides on a private space of the hosted service. Modulus Data systems are designed and configured to prevent customers from accessing physical and virtual hosts, storage spaces or systems and processes that are not assigned to them.

When customer deploys content (ex: files) on Modulus Data’s hosted service, it is only for staging and processing and not for safekeeping in any way. Customer is responsible for the removal of processed data and content from hosted service private spaces. Customer can establish, through agreement with Modulus Data, a custom schedule and criteria for the automated removal of data from his private space.

3.4.2. Compliance

Modulus Data acknowledges that in receiving and storing data under this agreement, it will process personal data within the meaning of the Data Protection Act, 1988 and Data Protection Amendment Act 2003 (as amended, extended, substituted, superseded or replaced) and, with effect from 25 May 2018, the EU General Data Protection Regulation and any implementing legislation, codes of practice or other guidance issued by a competent authority (together, “Data Protection Law”). In such circumstances, Modulus Data agrees that:

  1. it constitutes a data processor and that Customer or relevant Customer partner which controls the content and use of such personal data constitutes the data controller;
  2. it will process personal data relating to customers, suppliers, contractors, counterparties, correspondents, employees, prospective or potential employees, directors and other officers of Customer or relevant Customer partner and any other data subjects whose personal data is processed in the context of performing its obligations under this agreement, for the duration of the term. The obligations and rights of the data controller shall be as set out in this agreement;
  3. it will only process such personal data in accordance with reasonable instructions of Customer or relevant Customer partner, including with regard to transfers of personal data to a country outside of the European Economic Area, and solely as strictly necessary for the performance of its obligations under this Agreement;
  4. it will ensure that the persons authorized by Modulus Data to process personal data are bound by appropriate confidentiality obligations;
  5. it will implement such technical and organisational security measures as are required to comply with the data security obligations under Data Protection Law;
  6. that it will not engage any sub-processor, or where Customer or relevant Customer partner has consented to the appointment of a sub-processor, replace such sub-processor or engage other sub-processors without the prior written consent of Customer or relevant Customer partner;
  7. where any sub-contractor of Modulus Data will be processing personal data on behalf of Customer or relevant Customer partner, Modulus Data shall ensure that a written contract exists between Modulus Data and the sub-contractor containing clauses equivalent to those imposed on Modulus Data in this clause. In the event that any Modulus Data sub-processor fails to meet its data protection obligations, Modulus Data will remain fully liable to Customer or relevant Customer partner for the performance of the obligations of the sub-processor;
  8. it will inform Customer or relevant Customer partner immediately in the event of receiving a request from a data subject to exercise their rights under Data Protection Law, and will provide such co-operation and assistance as may be required to enable Customer or relevant Customer partner to deal with any such request in accordance with the provisions of Data Protection Law, including by implementing appropriate technical and organisational measures to allow Customer or relevant Customer partner to comply with such requests;
  9. it will assist Customer or relevant Customer partner in ensuring and demonstrating compliance with its obligations in respect of the security of personal data under Data Protection Law;
  10. at the time when the processing by Modulus Data of personal data on behalf of Customer or relevant Customer partner under this Agreement comes to an end, it will:
    1. at the choice of Customer or relevant Customer partner , delete or return to Customer or relevant Customer partner all such personal data; and
    2. save as required by applicable law, delete all existing copies of such personal data;
  11. it will:
    1. make available to the data controller all information necessary to demonstrate compliance with the obligations laid down in this clause 5; and
    2. allow for and assist with audits, including inspections, conducted by Customer or relevant Customer partner , or another auditor mandated by Customer or relevant Customer partner , to enable Customer or relevant Customer partner to monitor Modulus Data’s compliance with the obligations laid down in this clause 5, including its data security obligations under Data Protection Law;
    3. notify Customer or relevant Customer partner in the event that it becomes aware of any personal data breach (as defined in Data Protection Law) and provide Customer or relevant Customer partner with such reasonable co-operation and assistance as may be required to mitigate against the effects of any such breach and comply with any reporting or notification obligations that may apply in respect of any such breach;
  12. Customer agrees that for the purposes of this agreement, and subject to Modulus Data’s compliance with its obligations hereunder, Modulus Data shall be entitled to process personal data on behalf of Customer or relevant Customer partner outside of the European Economic Area and, more specifically, in the US; and
  13. it shall use its best efforts to recover from a disaster and to continue providing Services to Customer within a commercially reasonable period.
  14. In this clause 3.4.2, “data controller”, “data processor”, “data subject”, “personal data” and “processing” shall have the same meaning as set out in the Data Protection Law, and “process” and “control” shall be construed accordingly.

3.4.3. Indemnity for Customer Data

Customer will defend, indemnify and hold harmless Modulus Data from and against any loss, cost, liability or damage, including attorneys’ fees, for which Modulus Data becomes liable arising from or relating to any claim relating to Customer Data, including but not limited to any claim brought by a third party alleging that Customer Data, or your use of the Hosted Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defence, or settlement of such claim; and (iii) all reasonable necessary cooperation of Modulus Data at your expense.

3.5. Security

Modulus Data implements security procedures to help protect Customer Data from security attacks. However, Customer understands that use of the Hosted Services necessarily involves transmission of Customers Data over networks that are not owned, operated or controlled by Modulus Data and that Modulus Data is not responsible for any of Customer Data lost, altered, intercepted or stored across such networks. Modulus Data cannot guarantee that it’s security procedures will be error-free, that transmissions of Customer Data will always be secure or that unauthorized third parties will never be able to defeat Modulus Data security measures or those of our third party service providers.

3.6. Storage Limits

There may be storage limits associated with a particular Hosted Service. These limits are documented in the particular Hosted Service contract. Modulus Data reserves the right to charge for additional storage or overage fees.

3.7. Acceptable use

Customer must ensure that it’s use of Hosted Services and all it’s Data is at all times compliant with Modulus Data’s Acceptable Use Policy and with all applicable local, state, federal and international laws and regulations (“Laws“).

4. Support and Maintenance

Modulus Data provides the support and maintenance services for the Services described in the Modulus Data Service Level Agreement (“SLA“) during the period for which Customer has paid the applicable fee. Support and Maintenance will be provided at the support level and during the support term specified in the SLA.

5. Technical Account Manager

Modulus Data will provide a Technical Account Manager (TAM) for services purchased in a Contract in accordance with the descriptions and conditions for those services set forth in the Contract and the accompanying service descriptions.

6. Restrictions

Except as otherwise expressly permitted in this Agreement, Customer will not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party, (b) use the Products for the benefit of any third party, (c) incorporate any Products into a product or service you provide to a third party, (d) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit your use, (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, except as permitted by law, (f) remove or obscure any proprietary or other notices contained in any Product, or (g) publicly disseminate information regarding the performance of the Products and Services.

7. License Certifications and Audits

At Modulus Data’s request, Customer agrees to provide a signed certification that it is using all Products pursuant to the terms of this Agreement, including the Scope of Use. Customer agrees to allow Modulus Data, or it’s authorized agent, to audit it’s use of the Products. Modulus Data will provide Customer with at least 10 days advance notice prior to the audit, and the audit will be conducted during normal business hours. Modulus Data will bear all out-of-pocket costs that it incurs for the audit, unless the audit reveals that Customer has exceeded the Scope of Use. Customer will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at it’s own cost. If Customer exceeds it’s Scope of Use, Modulus Data may invoice Customer for any past or ongoing excessive use, and Customer will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to Modulus Data at law or equity or under this Agreement. To the extent Modulus Data is obligated to do so, it may share audit results with certain of it’s third party licensors or assign the audit rights specified in this Section to such licensors.

8. Ownership and Feedback

Products and Services are made available on a limited license or access basis, and no ownership right is conveyed to Customer, irrespective of the use of terms such as “purchase” or “sale”. Modulus Data and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Products (including all No-Charge Products), their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Modulus Data, including without limitation as they may incorporate Feedback (“Modulus Data Technology“). From time to time, Customer may choose to submit comments, information, questions, data, ideas, description of processes, or other information to Modulus Data, including sharing Customer Modifications or in the course of receiving Support and Maintenance (“Feedback“). Modulus Data may, in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered Customer’s Confidential Information, and nothing in this Agreement limits Modulus Data’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.

9. No-Charge Products

Modulus Data may offer certain Products to Customer at no charge, including free accounts, trial use, and access to Beta Versions as defined below (“No-Charge Products“). Customer’s use of No-Charge Products is subject to any additional terms that Modulus Data may specify and is only permitted for the period designated by Modulus Data. Customer may not use No-Charge Products for competitive analysis or similar purposes. Modulus Data may terminate Customer’s right to use No-Charge Products at any time and for any reason in it’s sole discretion, without liability to you. Customer understands that any pre-release and beta products Modulus Data makes available (“Beta Versions“) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Products. Modulus Data makes no promises that any Beta Versions will ever be made generally available. In some circumstances, Modulus Data may charge a fee in order to allow Customer access to Beta Versions, but the Beta Versions will still remain subject to this Section 9 (No-Charge Products). All information regarding the characteristics, features or performance of Beta Versions constitutes Modulus Data’s Confidential Information. To the maximum extent permitted by applicable law, Modulus Data disclaims all obligations or liabilities with respect to No-Charge Products, including any Support and Maintenance, warranty, and indemnity obligations.

10. Confidentiality

Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party (“Receiving Party“) by the disclosing party (“Disclosing Party“) constitute the confidential property of the Disclosing Party (“Confidential Information“), provided that it is identified as confidential at the time of disclosure. Any Modulus Data Technology and any performance information relating to the Products shall be deemed Confidential Information of Modulus Data without any marking or further designation. 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; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required 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). 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. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of any Product.

11. Term and Termination

This Agreement is in effect for as long as Customer has a valid License Term or Subscription Term (the “Term“), unless sooner terminated as permitted in this Agreement. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach. Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. Customer may terminate this Agreement at any time with notice to Modulus Data, but Customer will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused Software, Hosted Services subscriptions, or Suppoh1rt and Maintenance. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Once the Agreement terminates, Customer (and it’s Authorized Users) will no longer have any right to use or access any Products or Services, or any information or materials that Modulus Data makes available to Customer under this Agreement, including Modulus Data Confidential Information. Customer is required to delete any of the foregoing from it’s systems as applicable (including any third party systems operated on Customer’s behalf) and provide written certification to Modulus Data that it has done so at Modulus Data’s request. The following provisions will survive any termination or expiration of this Agreement: Sections 3.4.3 (Indemnity for Customer Data), 9 (No-Charge Products) (disclaimers and use restrictions only), 6 (Restrictions), 7 (License Certifications and Audits), 8 (Ownership and Feedback), 10 (Confidentiality), 11 (Term and Termination), 15.2 (Warranty Disclaimer), 16 (Limitation of Liability), 20 (Dispute Resolution), 21 (Export Restrictions), and 23 (General Provisions).

12. Force Majeure

Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.

13. Severability

In the event any portion of this Agreement is deemed to be invalid or unenforceable, such portion shall be deemed severed and the parties agree that the remaining portions of this Agreement shall remain in full force and effect.

14. Assignment

Neither party may assign or otherwise transfer this Agreement without the written consent of the other party. This Agreement shall enure to the benefit of and bind the parties hereto and their respective legal representatives, successors and assigns.

15. Warranty and Disclaimer.

15.1. Due Authority

Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if Customer is an entity, this Agreement and each Contract is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.

15.2. WARRANTY DISCLAIMER

ALL PRODUCTS ARE PROVIDED “AS IS,” AND Modulus Data AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. Modulus Data SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF Modulus Data. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER Modulus Data NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PRODUCTS WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PRODUCTS (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE PRODUCTS (OR ANY SERVER(S) THAT MAKE A HOSTED SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

16. Limitation of Liability

NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO Modulus Data FOR PRODUCTS AND SUPPORT AND MAINTENANCE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, Modulus Data’S AGGREGATE LIABILITY TO CUSTOMER IN RESPECT OF NO-CHARGE PRODUCTS SHALL BE US$20. THIS SECTION 16 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (1) AMOUNTS OWED BY CUSTOMER UNDER ANY ORDERS, (2) EITHER PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, OR (3) CUSTOMER’S BREACH OF SECTION 6 (RESTRICTIONS). TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO CUSTOMER FOR ANY DAMAGES WHATSOEVER. The parties agree that the limitations specified in this Section (Limitation of Liability) will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

17. IP Indemnification by Modulus Data

Modulus Data will defend Customer against any claim brought against it by a third party alleging that a Product, when used as authorized under this Agreement, infringes a United States or European Union patent or registered copyright (a “Claim“), and Modulus Data will indemnify Customer and hold him harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed to settlement by Modulus Data (including reasonable attorneys’ fees) arising out of a Claim, provided that Modulus Data has received from Customer: (a) prompt written notice of the claim (but in any event notice in sufficient time for Modulus Data to respond without prejudice); (b) reasonable assistance in the defense and investigation of the claim, including providing Modulus Data with a copy of the claim and all relevant evidence in Customer’s possession, custody or control; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the claim. If Customer’s use of a Product is (or in Modulus Data’s opinion is likely to be) enjoined, if required by settlement, or if Modulus Data determines such actions are reasonably necessary to avoid material liability, Modulus Data may, at it’s option and in to it’s discretion: (i) procure a license for Customer’s continued use of the Product in accordance with this Agreement; (ii) substitute a substantially functionally similar Product; or (iii) terminate Customer’s right to continue using the Product and refund, in the case of Software, the license fee paid by Customer as reduced to reflect a three year straight-line depreciation from the license purchase date, and in the case of a Hosted Service, any prepaid amounts for the terminated portion of the Subscription Term. Modulus Data’s indemnification obligations above do not apply: (1) if the total aggregate fees received by Modulus Data with respect to Customer’s license to Software or subscription to Hosted Services in the 12 month period immediately preceding the claim is less than US$50,000; (2) if the Product is modified by any party other than Modulus Data, but solely to the extent the alleged infringement is caused by such modification; (3) if the Product is used in combination with any non-Modulus Data product, software or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Products; (5) to any Claim arising as a result of (y) Customer’s Data (or circumstances covered by your indemnification obligations in Section 3.4.3 (Indemnity for Customer Data)) or (z) any third-party deliverables or components contained with the Products; (6) to any unsupported release of the Software; or (7) if Customer settles or make any admissions with respect to a claim without Modulus Data’s prior written consent. THIS SECTION 17 (IP INDEMNIFICATION BY Modulus Data) STATES Modulus Data’s SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCT OR OTHER ITEMS PROVIDED BY Modulus Data UNDER THIS AGREEMENT.

18. Publicity Rights

Modulus Data may identify Customer as a Modulus Data customer in it’s promotional materials. Customer may request that Modulus Data stops doing so by submitting an email to sales@modulusdata.com at any time. Modulus Data reserves the right to take up up to 30 days to process such Customer request.

19. Improving Modulus Data Products and Services

Modulus Data is always striving to improve it’s Products and Services. In order to do so, Modulus Data needs to measure, analyze, and aggregate how users and systems interact with it’s Products, such as usage patterns and characteristics of it’s user base. Modulus Data collects and uses analytics data regarding the use of it’s Products and Services but Modulus Data does not use Personal Information appearing in it’s Analytics Logs for any purpose.

20. Dispute Resolution

20.1. Dispute Resolution; Arbitration

In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in one of the following cities as mutually agreed between the parties: Montreal (Canada) or New York (USA). If the parties are unable to agree to one of these cities, then the arbitration shall proceed in Montreal, Canada. All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.

20.2. Governing Law; Jurisdiction.

This Agreement will be governed by and construed in accordance with the applicable laws of the Province of Quebec, Canada, without giving effect to the principles of that Province relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 20.1 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Montreal, Quebec, Canada, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Montreal, Quebec, Canada, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, Modulus Data may bring a claim for equitable relief in any court with proper jurisdiction.

20.3. Injunctive Relief; Enforcement.

Notwithstanding the provisions of Section 20.1 (Dispute Resolution; Arbitration), nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

20.4. Exclusion of UN Convention and UCITA

The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted.

21. Export Restrictions

The Products under the scope of this agreement are subject to export restrictions by the United States government and import restrictions by certain foreign governments, and Customer agrees to comply with all applicable export and import laws and regulations in it’s use of the Products. Customer shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that (i) you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list and (ii) that none of Your Data is controlled under the US International Traffic in Arms Regulations. The Products are restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the United States government.

22. Changes to this Agreement

Modulus Data may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces Customer’s rights, Modulus Data will use reasonable efforts to notify Customer (by, for example, sending an email to the billing or technical contact Customer designates in the applicable Contract, posting on it’s blog, through the Customer’s Modulus Data account, or in the Product itself). If Modulus Data modifies the Agreement during Customer’s License Term or Subscription Term, the modified version will be effective upon Customer’s next renewal of a License Term, Support and Maintenance term, or Subscription Term, as applicable. In this case, if Customer objects to the updated Agreement, as it’s exclusive remedy, he may choose not to renew, including cancelling any terms set to auto-renew. With respect to No-Charge Products, accepting the updated Agreement is required for Customer to continue using the No-Charge Products. Customer may be required to click through the updated Agreement to show it’s acceptance. If Customer does not agree to the updated Agreement after it becomes effective, Customer will no longer have a right to use No-Charge Products. For the avoidance of doubt, any Contract is subject to the version of the Agreement in effect at the time of the Contract signature.

23. General Provisions

Any notice under this Agreement must be given in writing. Modulus Data may provide notice to Customer via email. Modulus Data notices to Customer will be deemed given upon the first business day after sending it. Customer may provide notice to Modulus Data by post to Modulus Data, 1009-5955 Saint Laurent, Levis, QC, Canada G6V 3P5 Attn: General Counsel. Customer notices to Modulus Data will be deemed given upon receipt by Modulus Data. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. Customer may not assign this Agreement without Modulus Data’s prior written consent. Modulus Data will not unreasonably withhold it’s consent if the assignee agrees to be bound by the terms and conditions of this Agreement. Modulus Data may assign it’s rights and obligations under this Agreement (in whole or in part) without Customer’s consent. The Products are commercial computer software. If Customer is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Products, or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Products were developed fully at private expense. All other use is prohibited. This Agreement is the entire agreement between Customer and Modulus Data relating to the Products and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Agreement may not be modified or amended by Customer without Modulus Data’s written agreement (which may be withheld in Modulus Data’s complete discretion without any requirement to provide any explanation). As used herein, “including” (and its variants) means “including without limitation” (and its variants). No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.

For any questions concerning this agreement, please contact:

Modulus Data Inc.
Attn: General Counsel
1009-5955 Saint Laurent
Levis, QC, Canada G6V 3P5

Appendix A: Third Party Code in Modulus Data Products

This is a supplement to the Modulus Data Master Hosting Service Agreement (the “Agreement“) and is included in the Agreement. Any capitalized terms used but not defined below have the meanings in the Agreement. The Products contain code and libraries that Modulus Data license’s from third parties. Some of these licenses require us to flow certain terms down to the Customer.

A.1 Open Source Software in the Products.

The Products include components subject to the terms and conditions of “open source” software licenses. To the extent applicable, Modulus Data will identify open source software included in a Product in or through the Product itself. Some of these licenses require Modulus Data to provide the open source software to it’s customers on the terms of the open source license instead of the terms of the Agreement. In that case, the terms of the open source license will apply, and Customer will have the rights granted in such licenses to the open source software itself, such as access to source code, right to make modifications, and right to reverse engineer. Notwithstanding the foregoing, if Customer is using the Products in the form provided, in accordance with his permitted Scope of Use, with no distribution of software to third parties, then none of these open source licenses impose any obligations on Customer beyond what is stated in the Agreement.

A.2 Combining the Products with Open Source Software.

A requirement of some open source licenses, sometimes known as “copyleft licenses,” is that any modifications to the open source software, or combinations of the open source software with other software (such as by linking), must be made available in source code form under the terms of the copyleft license. Examples of copyleft licenses include the GPL or LGPL, Affero, CPL, CDDL, Eclipse or Mozilla licenses. To the extent Customer is separately authorized by Modulus Data to combine and distribute Products with any other code, he must make sure that his use does not: (i) impose, or give the appearance of imposing, any condition or obligation on us with respect to our Products (including, without limitation, any obligation to distribute our Products under an open source license); or (ii) grant, or appear to grant, to any third party any rights to or immunities under our intellectual property or proprietary rights in our Products. To be clear, Customer may not combine or otherwise modify Modulus Data Products unless Modulus Data expressly gives him the right to do so under this Agreement.

A.3 Commercial Third Party Code in the Products

(a) The Products may also include components that Modulus Data license’s commercially from third parties (“Commercial Components”). For the avoidance of doubt, all of the restrictions for the Products in the Agreement also apply to Commercial Components. Commercial Components are also subject to some additional requirements as set forth below.

(b) Customer may use Commercial Components only in conjunction with, as part of, and through the Products as provided by Modulus Data. Customer may not install, access, configure or use any Commercial Components (including any APIs, tools, databases or other aspects any Commercial Components) separately or independently of the rest of the Product, whether for production, technical support or any other purposes, or otherwise attempt to gain direct access to any portions of the Commercial Components, or permit anyone else (including his own customers) to do any of these things.

(c) Some Commercial Components may include source code that is provided as part of its standard shipment. Commercial Component source code will be governed by the terms for Commercial Components in this supplement and not the provisions in Section 2 (“Customer Modifications”) of the Agreement. Accordingly, notwithstanding any other terms of the Agreement, Customer may not modify any Commercial Components. Customer will be financially responsible to the applicable third party licensor (“Commercial Component Licensor”) for all damages and losses resulting from his Authorized User’s breach of this Section. Customer may not “benchmark” or otherwise analyze performance information for individual Commercial Component elements.

(d) Customer understands that the applicable Commercial Component Licensor retains all ownership and intellectual property rights to the Commercial Component. Commercial Component Licensors (and any other third party licensors of any components of the Products) are intended third party beneficiaries of the Agreement with respect to the items they license and may enforce the Agreement directly against you. However, to be clear, Commercial Component Licensors do not assume any of Modulus Data’s obligations under the Agreement.