MURAL has developed and hosts the Subscription Service (as defined below).
Customer desires to use and MURAL shall provide the Subscription Service on the terms and conditions of this Agreement.
NOW, THEREFORE, the parties agree as follows:
1.1 “Authorized User” means a person who is authorized by Customer to access and use the Subscription Services in accordance with Exhibit C hereto.
1.2 “Customer Content” means text, data, graphics, images, photos, drawings, sketches, hypertext links, web content, and any other content uploaded or or stored in the Subscription Service by Customer or an Authorized User.
1.3 “Education Services” means the education and training services to be performed by MURAL to onboard Customer to the Subscription Service, as described in the Order Form.
1.4 “Fees” means the fees described in the current Order Form.
1.5 “Implementation Services” means the services, if any, to be performed by MURAL to configure and implement the Subscription Service to Customer, as described in the Order Form
1.6 “Intellectual Property Rights” means patent rights (including, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.7 “Open Room” means an open area of the Customer Workspace where certain Murals that have been published there can be accessed by all Members of the Customer Workspace.
1.8 “Order Form” means the MURAL Order Form to be used by Customer to order and purchase the Subscription Service.
1.9 “Payment Period” means the period set forth in the Order Form and as otherwise specified in Exhibit C hereto.
1.10 “Private Room” means a private room given to each Member of the Customer Workspace for the creation of their own Murals which they can use to keep private or share with other Authorized Users by invitation.
1.11 “Software” means any MURAL or third-party software used by MURAL to provide the Education Services, the Implementation Services, or the Subscription Service.
1.12 “Subscription Service” means the MURAL software and services as described in the Order Form and more fully described in Exhibit B hereto. The Subscription Service will be provided through the website located at a URL to be provided to Customer (the “URL”). MURAL may change the URL from time to time upon no less than ten (10) days’ written notice to Customer.
1.13 “Subscription Term” means the subscription term of the Subscription Service set forth in the Order Form.
1.14 “Term” means the term of this Agreement as defined in Section 9.1.
1.15 “Customer Sourced Personal Data” means any personal data (data that can directly or indirectly, including when used in combination with other data, identify an individual) associated with consumers, Customer employees or workers and/or any Authorized User of a platform used on or behalf of Customer to utilize Mural’s Subscription Service.
2. SUBSCRIPTION SERVICE; EDUCATION AND IMPLEMENTATION SERVICES
2.1 Subscription Service License. Subject to Customer’s compliance with this Agreement, MURAL d grants to Customer a worldwide, non-exclusive and non-transferable license to access and use the Subscription Service internally during the Subscription Term. MURAL reserves all rights in the Software and Subscription Service not expressly granted in this Agreement. Customer may use the Subscription Service is limited to the number of Memberships for which Customer has paid Fees under the Order Form. MURAL will provide the Subscription Service in accordance with the service level agreement set forth in Exhibit A hereto (the “Service Level Agreement”).
2.2 Customer Content License. Customer grants to MURAL a worldwide, royalty free, non-exclusive and non-transferable license to use, reproduce, modify, distribute, transmit and display the Customer Content solely in connection with MURAL’s provision of the Subscription Service MURAL’s fullfilment of its obligations under this Agreement.
2.3 Restrictions. Customer shall not attempt to interfere with or disrupt the Software or the Subscription Service. Customer shall not allow access or use of the Subscription Service by anyone other than an Authorized User. Customer shall not: (a) copy, modify or distribute any portion of the Software or Subscription Service; (b) rent, lease, or provide access to the Subscription Service on a time-share or service bureau basis; (c) transfer any of its rights hereunder except as otherwise expressly permitted hereunder; (d) use the Subscription Service in violation of applicable law or regulation (including export control and sanctions laws and regulations); or (e) evaluate or use, or facilitate the evaluation or use, of the Subscription Service for the purpose of competing with MURAL.
2.4 Acceptable Use Policies. Customer acknowledges and agrees that MURAL does not monitor or police communications or data transmitted through the Subscription Service and that MURAL shall not be responsible for the content of any such communications or transmissions. Customer shall not use the Subscription Service to transmit any bulk unsolicited commercial communications. Customer shall keep confidential and not disclose to any third parties, and shall ensure that Authorized Users keep confidential and do not disclose to any third parties, any user identifications, account numbers and account profiles. Customer acknowledges that the Subscription Service is not designed, intended or authorized for use in hazardous or mission-critical circumstances or for uses requiring fail-safe performance such as the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control systems or weapons control systems, or where failure could lead to death, personal injury or environmental damage. Customer shall not use the Subscription Service for such purposes or under such circumstances.
2.5 Data Maintenance and Backup Procedures. MURAL shall follow its archival procedures for Customer Content as described in the Service Level Agreement. In the event of any loss or corruption of Customer Content, MURAL shall use its commercially reasonable efforts to restore the lost or corrupted Customer Content from the latest backup of such Customer Content maintained by MURAL. MURAL shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Content. MURAL’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER CONTENT PURSUANT TO THIS SECTION SHALL CONSTITUTE MURAL’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER CONTENT.
2.6 Education and Implementation Services. MURAL will provide the Education Services and Implementation Services, if any, as described in the Order Form.
3. CUSTOMER OBLIGATIONS
3.1 Cooperation and Assistance. Customer shall: (a) provide MURAL with good faith cooperation and access to such information as may be reasonably required by MURAL in order to provide the Education Services, the Implementation Services, and the Subscription Service.
3.2 Customer Marks. Customer grants to MURAL a non-exclusive, non-transferable (except as permitted hereunder), limited right to use the Customer name, trademarks, and logos (collectively, the “Customer Marks”) in the production of any MURAL marketing materials as permitted by Customer, provided that such use is in accordance with Customer’s trademark and logo use guidelines that Customer provides to MURAL. All goodwill developed from such use shall be solely for the benefit of Customer.
3.3 Enforcement. Customer shall ensure that all Authorized Users comply with the terms and conditions of this Agreement. Customer shall promptly notify MURAL of any suspected or alleged violation of this Agreement and shall cooperate with MURAL with respect to: (a) investigation by MURAL and (b) any action by MURAL to enforce this Agreement. MURAL may suspend or terminate any Authorized User’s access to the Subscription Service upon notice to Customer in the event that MURAL reasonably determines that such user has violated this Agreement. Customer shall be liable for any violation of this Agreement by any Authorized User.
3.4 Telecommunications and Internet Services. Customer agrees that it’s use of the Subscription Service is dependent upon access to telecommunications and Internet services. Customer shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to use the Subscription Service, including, without limitation, any and all related costs and taxes. MURAL shall not be responsible for any loss or corruption of data, communications, or any other loss or damage arising from such telecommunications and Internet services.
3.5 Copyrighted Materials: No Infringing Use. Customer will not, and will ensure that Authorized Users will not, use the Subscription Service to offer, display, distribute, transmit, route, provide connections to or store any Customer Content or any other material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party. In compliance with the safe harbor provision(s) of the Digital Millennium Copyright Act of 1998 (“DMCA”), and MURAL reserves the right to take down any and all content posted via use of the Subscription Service at any time if MURAL believes that Customer is in violation of this Section. Customer will assist MURAL with any such compliance activities. Consequently, Customer will immediately upon receipt of any claims of copyright infringement committed using the Subscription Service (“Notices of Alleged Infringement”) forward such notices to MURAL at firstname.lastname@example.org.
4. FEES; EXPENSES; TAXES
4.1 Fees. In consideration for MURAL providing the Education Services, Implementation Services, if any, and Subscription Service, Customer shall pay to MURAL the Fees set forth in Order Form.
4.2 Other Expenses. Customer shall reimburse MURAL for all pre-approved expenses (including, but not limited to, travel, lodging or shipping and long distance communication) incurred by MURAL in performing the Education Services and Implementation Services, if any (collectively, “Expenses”).
4.3 Invoices; Payment; Late Payment. MURAL shall invoice Customer as of the first day of each Payment Period for: (i) Fees and if legally required applicable Taxes due in that Payment Period and (ii) Expenses incurred in the previous Payment Period. Each invoice is due and payable thirty (30) days following the invoice date. If MURAL has not received payment within five (5) days after the due date, interest shall accrue on past due amounts at the rate of one and one half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by MURAL. Customer shall reimburse MURAL for the reasonable costs of collection, including reasonable fees and expenses of attorneys.
4.4 Taxes. All amounts and fees referenced in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, VAT) (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and penalties resulting from any payments made hereunder, other than any taxes based on MURAL’s net income.
5.1 MURAL Ownership. As between MURAL and Customer, the Subscription Service, Software and all data that MURAL collects regarding the use of the Subscription Service (expressly excluding any Customer Content), and all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of MURAL or its licensors (see https://mural.co/terms/ for a list of attributions).
5.2 Customer Ownership.As between Customer and MURAL, Customer retains all right, title, and interest in and to the Customer Content, including any Intellectual Property Rights therein.
6.1 Definition. By virtue of this Agreement, the parties may have access to each other’s Confidential Information. “Confidential Information,” means any written, machine-reproducible and/or visual materials that are clearly labeled as proprietary, confidential, or with words of similar meaning, and all information that is orally or visually disclosed, if not so marked, if it is identified as proprietary or confidential at the time of its disclosure or in a writing provided within thirty (30) days after disclosure, and any information of any nature described in this Agreement as confidential, or that the receiving party should reasonably understand to be confidential. MURAL Confidential Information includes, without limitation, the Subscription Service and any Software whether in source or executable code, Software and Subscription Service documentation, nonpublic financial information, pricing, business plans, techniques, methods, processes, and the results of any performance tests of the Subscription Service or the Software. Customer Content is the Confidential Information of Customer, provided that if MURAL is instructed by Customer in writing to share or otherwise publish such Customer Content, it shall be entitled to do so. The terms and conditions of this Agreement shall be deemed the Confidential Information of both parties and neither party shall disclose such information except to such party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers as have a reasonable need to know such information, provided that any such third parties shall, before they may access such information, either (a) execute a binding agreement to keep such information confidential or (b) be subject to a professional obligation to maintain the confidentiality of such information.
6.2 Exclusions. Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.
6.3 Use and Nondisclosure. During the Term and for a period of five (5) years after expiration or termination of this Agreement, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Each party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
7. REPRESENTATIONS AND WARRANTIES
7.1 Mutual Representations. Each party represents and warrants that (a) it has all necessary right, power, and authority to enter into this Agreement and to perform the acts required of it and (b) its performance of this Agreement will comply with all applicable laws and regulations.
7.2 Warranty for Subscription Service. MURAL warrants that the Subscription Service will provide the functionality set forth in Exhibit B hereto, and that MURAL’s delivery of the Subscription Service will meet the requirements set forth in the Service Level Agreement. Customer’s sole and exclusive remedy for any breach of the warranty set forth in this Section will be as set forth in the Service Level Agreement.
7.3 Disclaimer. MURAL (i) is not responsible for the activities of Customer and Authorized Users; and (ii) has no ability to control the Customer Content that is uploaded, posted or transmitted using the Subscription Service and does not have any obligation to monitor such Customer Content for any purpose and, as a result, is not responsible for the accuracy, completeness, or legality of the Customer Content and disclaims any and all liability in that regard. Customer assumes sole responsibility and liability for results obtained from the use of the Subscription Service. MURAL shall have no liability for any claims, losses, or damage caused by errors or omissions in Customer Content in connection with the Subscription Service or any actions taken by MURAL at Customer’s direction. MURAL shall have no liability for any claims, losses or damages arising out of or in connection with Customer’s use of any third-party products, services, software or websites that are accessed via links from within the Subscription Service. MURAL does not own or operate the third party sites, and MURAL has not reviewed, and cannot review, all of the material, including goods or services, made available through third party sites. The availability of these links on the Subscription Services does not represent, warrant or imply that MURAL endorses any third party sites or any materials, opinions, goods or services available on them. Third party materials accessed through or used by means of the third party sites may also be protected by copyright and other intellectual property laws.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.2, MURAL MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE EDUCATION SERVICES, THE IMPLEMENTATION SERVICES OR THE SUBSCRIPTION SERVICE. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.2, MURAL DISCLAIMS ANY WARRANTY THAT THE SUBSCRIPTION SERVICE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. MURAL FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SUBSCRIPTION SERVICE AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. MURAL FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MURAL OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
8. TERM AND TERMINATION
8.1 Term. This Agreement will commence on the Effective Date and will continue for the longer of (i) one (1) year or (ii) during the period while any Order is still in effect (the “Initial Term”), unless terminated earlier as provided in this Agreement. This Agreement will automatically renew for subsequent one (1) year periods, unless either party notifies the other in writing of its intent not to renew at least thirty (30) days prior to the end of the then-current term. The Initial Term and renewal periods are collectively the “Term”.
8.3 Termination for Insolvency. Subject to Title 11 of the United States Code, if Customer becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver, or makes an assignment for the benefit of any creditor, then MURAL may terminate this Agreement upon thirty (30) days’ written notice.
8.4 Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, Customer’s right to use the Subscription Service will immediately terminate, Customer and its users will immediately cease all use of the Subscription Service, and each party will return and make no further use of any Confidential Information belonging to the other party. MURAL will destroy or otherwise dispose of any Customer Content in its possession unless MURAL receives, no later than ten (10) days after the expiration or termination of this Agreement, a written request for the delivery to Customer of the then-most recent backup of the Customer Content. MURAL will use all reasonable efforts to deliver the back-up to Customer within thirty (30) days of its receipt of such a written request. Customer will pay all reasonable expenses incurred by MURAL in returning Customer Content to Customer. MURAL will cease use of the Customer Marks; provided, however, that (a) MURAL shall have a reasonable time to remove the Customer Marks from promotional materials, and (b) MURAL shall not be required to remove any such printed materials from circulation.
8.5 Survival. The rights and obligations of MURAL and Customer contained in Sections 4 (Fees, Expenses and Taxes), 5 (Ownership), 6 (Confidentiality), 8.4 (Rights and Obligations Upon Expiration or Termination), 8.5 (Survival), 9 (Indemnification), 10 (Limitation of Liability), and 11 (General) shall survive any expiration or termination of this Agreement.
9.1 Indemnification by MURAL. MURAL shall indemnify, defend (or settle) any suit or action brought against Customer by a third party to the extent it is based upon a claim that the Subscription Service infringes the Intellectual Property Rights of any third party, and MURAL will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that is awarded against Customer. MURAL’s obligations under this Section are contingent upon: (a) Customer providing MURAL with prompt written notice of such claim; (b) Customer providing reasonable cooperation to MURAL, at MURAL’s expense, in the defense and settlement of such claim; and (c) MURAL having sole authority to defend or settle such claim. In the event that MURAL’s right to provide the Subscription Service is enjoined or in MURAL’s reasonable opinion is likely to be enjoined, MURAL may either; i) obtain the right to continue providing the Subscription Service; ii) replace or modify the Subscription Service so that it becomes non-infringing, or, iii) if such remedies are not reasonably available, terminate this Agreement without liability to Customer and refund amounts pre-paid by Customer to MURAL for the remainder of the then Subscription Term. THE FOREGOING STATES THE ENTIRE OBLIGATION OF MURAL AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SUBSCRIPTION SERVICES. MURAL shall have no liability under this Section to the extent that any third-party claims are based on use of the Subscription Service in a manner that violates this Agreement, the instructions given to Customer by MURAL or the combination, operation or use of the Subscription Service with other applications, portions of applications, product(s) or services where the Subscription Service would not by themselves be infringing.
Customer shall indemnify, defend (or settle) any suit or action brought against MURAL by a third party to the extent it is based on the Customer Content, and Customer will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that is awarded against MURAL.
10. LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 6, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.
EXCEPT FOR FEES OWED HEREUNDER, A BREACH OF ANY OF SECTIONS, 2.3, 2.4, 6, OR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL MONTHLY SUBSCRIPTION FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
The parties acknowledge that the limitations and exclusions contained in this Section and elsewhere in this Agreement have been the subject of negotiation and represent the parties’ agreement based upon the perceived level of risk associated with their respective obligations under this Agreement, and the payments made hereunder. Without limiting the generality of the foregoing, the parties acknowledge and agree that (a) the provisions hereof that limit liability, disclaim warranties or exclude consequential damages or other damages or remedies shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach hereunder, and (b) all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose.
11.1 Governing Law. This Agreement and all matters arising out of or relating to it will be governed by the laws of the State of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement will be brought exclusively in the state or federal courts located inthe Northern District of California. MURAL and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
11.2 Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
11.3 Notices. All notices required to be sent under this Agreement will be in writing and will be sent to the addresses set forth in the Order Form or delivered in person. The notices will be deemed given upon: (a) the date actually delivered in person; (b) the day after the date sent by overnight courier; or (c) three (3) days following the date such notice was mailed by first class mail. Notices may be confirmed by email or fax.
11.4 Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
11.5 Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations under this Agreement (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation, denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations affected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
11.6 Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
11.7 Relationship Between the Parties. Nothing in this Agreement will create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
11.8 Assignment/Successors. Neither party may assign or transfer this Agreement, in whole or in part, without the other party’s written consent except in the event of a Change of Control (as defined below). Any attempted assignment or transfer in violation of this Section will be null and void. “Change of Control” means, with respect to a party: (a) the direct or indirect acquisition of either (i) the majority of voting stock of such party or (ii) all or substantially all of the assets of such party, by another entity in a single transaction or a series of transactions; or (b) the merger of such party with another entity. Subject to the foregoing restrictions, this Agreement shall inure to the benefit of the successors and permitted assigns of the parties.
11.9 Entire Agreement. This Agreement together with its Exhibits and the Order Form constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by an authorized representative of each party.
11.10 Non-Exclusive Remedies. Except as set forth in Section 7.2 and in the Service Level Agreement, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement.
11.11 Equitable Relief. Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
11.12 No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories. Only the parties to this Agreement may enforce it.
11.13 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which shall constitute one and the same instrument.
SERVICE LEVEL AGREEMENT
1 Subscription Service.
The Subscription Service will meet the following service level standards:
1.1 Hosting Facility. The hosting equipment will be installed on MURAL premises or in a professional hosting facility designed for such use. The facility will be equipped with access security, climate control, fire suppression, managed power supply with UPS, and generator backup.
1.2 Load Distribution Management. MURAL will provide load balancing services to distribute load and redundancy across application servers.
1.3 Monitoring Services. MURAL will provide 24x7x365 monitoring of the computing, operating and networking infrastructure to detect abnormalities. This includes environmental monitoring, network monitoring, load balancing monitoring, web server and database monitoring, firewall services, and intrusion detection.
1.4 Backup, Archiving and Recovery Services. MURAL will perform regular backups of Customer Content and provide routine and emergency recovery of Customer Content from its archives. The backup schedule will include at least weekly full backups and daily incremental backups. In the event of loss or corruption of Customer Content, MURAL will use reasonable commercial efforts to restore such Customer Content based on its most recent backup.
1.5 Administration Services. MURAL will provide installation and administration of additional hardware, operating systems and other software, equipment and resources as necessary to maintain the Subscription Service.
2 Service Availability.
2.1 Uptime Requirement: The Subscription Service will be available and accessible by Customer at least 99.5% of the time as measured on a monthly basis during the Subscription Term, excluding (i) Planned Downtime, and (ii) downtime that is caused by (a) Customer’s telecommunications and Internet services, (b) software or hardware not provided and controlled by MURAL (including third-party software or sites that are accessed or linked through the Subscription Service), or (c) Force Majeure Events (“Uptime Availability”).
2.2 SLA Credits: If the Subscription Services do not meet the Uptime Availability in any given calendar month and this downtime significantly affected Customer’s ability to use the Subscription Services, then MURAL will credit Customer the amount based on the table below for the affected Subscription Service (such credit, a “Service Credit”). Such Service Credit shall be applied as a discount to the Fees to be paid by Customer to MURAL in the next invoice. Service Credits may not be exchanged for, or converted to, monetary amounts. Service Credits are only applicable to future fees owed by Customer to MURAL. If any Service Credit remains outstanding upon expiration or termination of this Agreement and no Fees remain payable by Customer to MURAL, MURAL will pay Customer the remaining amount within 30 days after expiration or termination. This Service Credit is Customer’s sole and exclusive remedy. Any obligations of MURAL under this Section 2.2 shall become null and void upon any breach by Customer of the Agreement, including any failure by Customer to meet payment obligations to MURAL.
2.3 Planned Downtime: For purposes of this Agreement, “Planned Downtime” will mean MURAL’s regularly scheduled maintenance windows for the Subscription Service which (a) Customer has been notified of in writing reasonably in advance, (b) shall take place no more than (i) one (1) hour per night starting at 4 AM ET, for daily maintenance and (ii) three (3) hours per month between the hours of 2 AM and 6 AM ET of monthly maintenance and (c) will in no event exceed five (5) hours per month in the aggregate.
3 Support Services.
3.1 Requirement. MURAL will (a) respond to all electronic correspondence (whether chat or email ) received from Customer on support issues regarding the Subscription Service within one hundred twenty (120) minutes of receipt; and (b) make available a representative to receive telephonic correspondence, in each case, during the hours from 6:00 AM ET and 6.00 PM ET Monday through Friday (collectively, the “Support Services Requirement”).
The Subscription Service includes the following:
Under the MURAL user system, there is a Workspace and there are one or more Administrators, Members, Guests, and Visitors.
Workspace is a space you share with other Members to collaborate and get work done in MURAL. A Workspace is associated with a MURAL account. It is identified by a unique ID that is associated with an enterprise team and has a specified number of paid Memberships associated with it, as may be adjusted from time to time by an Administrator.
Administrators are Workspace managers and Members with full authority to invite other Members to join the Workspace and to grant full or limited collaboration rights to Members at the Workspace level.
Members are team members of the Workspace that have been invited by an Administrator or other Members and accepted as Members by an Administrator, and who have full collaboration rights, subject to any limitations that might be imposed by an Administrator at any time. Members can be deactivated by an Administrator at any time. Deactivated Members will no longer be able to access the Workspace or any mural other than as Visitors. Any Membership associated with a Deactivated Member will be available for consumption by another Member as may be selected by an Administrator.
Guests are external stakeholders, partners or clients. New people from an external company domain invited to a room or mural become Guests. Guests remain in the Workspace for as long as an Administrator desires. Guests have substantial collaboration rights in the Workspace but they do not have access to all the collaboration rights available to Members. Guest collaboration rights are described at mural.co/guests.
Visitors are internal or external participants that may be invited to a mural to collaborate via a share link. Visitors will join automatically and will be represented by an anonymous animal avatar without having to sign in or create an account. Visitors who join with editing permissions with be able to collaborate in a mural with the same collaboration rights attributed to Guests. Those who join with a view link will not be able to edit, but they will see changes in real time and will be able to follow and be followed. At the end of the MURAL session to which they were invited, these Visitors will no longer be participants in the Workspace and will need to be reinvited for any further collaboration. Visitor collaboration rights are described at mural.co/anonymous visitors
Membership is the unit of value associated with a Workspace. For every Membership, there may be one (1) concurrent Member of a Workspace. Customers pay for the number of Memberships associated with a Workspace.
Membership true up. If at the end of a quarterly billing cycle the number of Members exceeds the number of Memberships, an Administrator must either: i) increase the number of Memberships to equal or exceed the number of Members; or ii) an Administrator can choose to deactivate Members so that they do not exceed the number of Memberships available. An Administrator must make this decision no later than seven (7) days after the end of the most recent quarterly billing cycle. Any new Membership added to the Workspace will have an effective start date as of the first day of the new quarterly billing cycle and will run through to the end of the current annual billing cycle. New Memberships will be billed in advance pro rata for the remainder of the annual billing cycle.