These Customer Terms of Use (“Customer Terms of Use” or “Agreement”) govern your (“your, “you” or “Customer”) use of software and services of MantisGrid AI Inc. and its Affiliates (“MantisGrid AI”, “we”, “us” and “our”). By executing a Software Order for any MantisGrid AI Offerings and/or otherwise accessing, using or receiving such MantisGrid AI Offerings (including through a Marketplace or Approved Source), you agree to these Customer Terms of Use. Unless already defined, all capitalized terms shall have the meaning in Section A below.
These Customer Terms of Use are structured into the following sections:
A. DEFINITIONS – contains the defined terms used throughout the Agreement.
B. STANDARD SERVICES TERMS – These Standard Services Terms govern your access to and use of the MantisGrid AI Offerings. MantisGrid AI provides its Software primarily as a Software-as-a-Service (SaaS) offering hosted by MantisGrid AI or hosted on cloud infrastructure provided by its cloud providers. Customers may purchase subscriptions directly from MantisGrid AI or through approved cloud marketplaces, for example Microsoft Azure Marketplace. Where expressly set forth in the applicable Software Order, MantisGrid AI may also provide a customer-managed deployment of the Software for installation and use within the Customer’s environment, including air-gapped or other isolated environments. The Software may be licensed under either a Flat Rate Subscription or a Metered Subscription, as specified in the applicable Software Order or applicable Marketplace offer. MantisGrid AI may also provide Configuration Services related to the planning, deployment, implementation, integration, optimization, and operation of the Software. These Terms govern the MantisGrid AI Offerings regardless of whether they are purchased directly from MantisGrid AI, through a Marketplace, or through an Approved Source.
C. PROCURE TO PAY TERMS – This Section contains the terms governing the procurement and payment of MantisGrid AI Offerings. When you purchase MantisGrid AI Offerings directly from MantisGrid AI, your procurement and payment obligations are governed by this Agreement and the applicable Software Order. When you purchase MantisGrid AI Offerings through a Cloud Provider Marketplace or other Approved Source, including Microsoft Azure Marketplace, AWS Marketplace, or Google Cloud Marketplace, your procurement and payment obligations, including invoicing and payment processing, shall be governed by the applicable Marketplace or Approved Source terms, while your access to and use of the MantisGrid AI Offerings shall continue to be governed by this Agreement unless otherwise expressly stated.
D. GENERAL LEGAL TERMS – contains other terms that govern your relationship with MantisGrid AI.
A. DEFINITIONS
A.1 “Agreement” or “Customer Terms of Use” means this Agreement, any applicable Service Description and any Software Order.
A.2 “Affiliate” means with respect to a Party, any entity which directly or indirectly controls, is controlled by or is under common control with such Party, where “control”, “controlled by” or “under common control” means the direct or indirect possession of more than fifty per cent (50%) of the equity of the particular entity type.
A.3 “Approved Source” means a MantisGrid AI authorized channel partner such as a value-added reseller or Services Provider, including when such channel partner transacts with you through a Marketplace.
A.4 “MantisGrid AI Offerings” means the Software, AI Services, Device(s), Support Services, and Configuration Services that MantisGrid AI makes available to you under this Agreement, whether provided (i) as a Software-as-a-Service (SaaS) offering hosted by or on behalf of MantisGrid AI, (ii) through a Cloud Provider Marketplace, (iii) deployed within Customer-managed cloud or on-premises environments, including air-gapped or isolated environments, or (iv) pursuant to a Software Order or other written ordering document. MantisGrid AI Offerings may be licensed under a Flat Rate Subscription, Metered Subscription, or any other licensing model specified in the applicable Software Order or Marketplace offer.
A.5 “Cloud Provider” means a provider of cloud computing infrastructure or platform services, including public, private, hybrid, or sovereign cloud environments, through which the MantisGrid AI Offerings may be hosted, deployed, or made available.
A.6 “Configuration Services” means any professional services such as training, planning, design, and implementation or other consultative services that we provide to you in support of your deployment of the Software pursuant to a Software Order and the applicable Services Description.
A.7 “MantisGrid AI Platform” means the MantisGrid AI cloud-native reliability platform that delivers the features and functionality of the Software, including infrastructure discovery, infrastructure and reliability graphs, AI-powered insights, reliability findings, analytics, monitoring, diagnostics, predictive intelligence, orchestration, and remediation capabilities, as further described in the Documentation. The MantisGrid AI Platform may be (i) provided as a Software-as-a-Service (SaaS) offering hosted by or on behalf of MantisGrid AI, (ii) purchased through a Cloud Provider Marketplace, or (iii) deployed within Customer-managed cloud, on-premises, or air-gapped environments, as specified in the applicable Software Order or Marketplace offer.
A.8 “Customer Data” means any electronic data, content, information, or software owned or controlled by Customer or its licensors that MantisGrid AI collects, filters, stores, accesses, transmits, analyzes, or otherwise processes in connection with providing the MantisGrid AI Offerings. Customer Data includes, without limitation, logs, metrics, traces, telemetry, configuration data, operational events, and other infrastructure or workload data generated from or related to GPUs, CPUs, bare-metal servers, virtual machines, Kubernetes clusters, operating systems, storage, networking, and cloud or on-premises environments. Such data is processed solely to deliver the MantisGrid AI Offerings, including AI-powered fault detection, root cause analysis, predictive analytics, operational recommendations, and guided or autonomous remediation.
A.9 “Device” means a hardware appliance that we may sell to you or you purchase through an authorized Third-Party Provider. You deploy the Device(s) on your, or your Cloud Provider’s, premises to enable certain Software functionality as set forth on a Software Order and further described in the Documentation. Device(s) are not available for purchase or use on a standalone basis without the applicable Software.
A.10 “Documentation” means MantisGrid AI published materials that describe the features and functionality of the MantisGrid AI Offerings.
A.11 “EEA” means the European Economic Area.
A.12 “Fees” means the fees you pay for the MantisGrid AI Offerings a) directly to MantisGrid AI, b) to a Cloud Provider through its Marketplace, or c) to an Approved Source, each as set forth on a Software Order and, if applicable, by your use of the MantisGrid AI Offerings.
A.13 “Licensed Capacity” means the quantity of Nodes or other licensed infrastructure resources that Customer is authorized to monitor, manage, or use with the MantisGrid AI Platform under the applicable Software Order or Marketplace offer. Licensed Capacity may be licensed under a Flat Rate Subscription, Metered Subscription, or another licensing model specified in the applicable Software Order or Marketplace offer. A Private Offer or Software Order may establish licensed capacity limits, consumption allowances, or additional usage rights.
A.14 “Node” means a logical or physical compute resource monitored or managed by the MantisGrid AI Platform. A Node may consist of a physical server (bare metal), virtual machine (VM), Kubernetes Pod, or other supported compute resource, whether individually or in combination, as determined by the applicable Software Order, Documentation, or licensing model.
A.15 “Marketplace” means a Cloud Provider and other MantisGrid AI authorized marketplace where you may be able to procure some or all of the MantisGrid AI Offerings through your respective Marketplace account(s), including with an Approved Source.
A.16 “Licensed Software” means the Software and related functionality that MantisGrid AI makes available to Customer under this Agreement, whether provided as a Software-as-a-Service (SaaS) offering, through a Cloud Provider Marketplace, deployed within Customer-managed cloud, on-premises, or air-gapped environments, or otherwise made available through an authorized sales channel pursuant to the applicable Software Order, Marketplace offer, and Documentation. Licensed Software includes the MantisGrid AI Platform, updates, upgrades, Documentation, and Software Support Services unless otherwise specified in the applicable Software Order. Licensed Software may be licensed under a Flat Rate Subscription, Metered Subscription, or another licensing model specified in the applicable Software Order or Marketplace offer. For Flat Rate Subscriptions, the license remains in effect for the subscription term specified in the applicable Software Order or Marketplace offer, subject to renewal and Customer remaining current with its payment obligations. For Metered Subscriptions, the license remains in effect while Customer continues to utilize Licensed Capacity and remains current with its payment obligations. Licensed Software may also be referred to in this Agreement as the “Software”.
A.17 “Offer Period” means the period of time specified on the Software Order in which the Software is available to you at modified rates.
A.18 “Party” or “Parties” means Customer and MantisGrid AI, individually or collectively, as applicable.
A.19 “Personal Data” means any information relating to an identified or identifiable natural person.
A.20 “Private Offer” means a non-public commercial offer provided by MantisGrid AI or an Approved Source that establishes Customer-specific pricing, Licensed Capacity, subscription terms, usage allowances, or other commercial terms for the MantisGrid AI Offerings during the applicable Offer Period. A Private Offer may apply to Flat Rate Subscriptions, Metered Subscriptions, or other licensing models offered by MantisGrid AI.
A.21 “Public Rates” means the standard pricing and commercial terms for the MantisGrid AI Offerings published by MantisGrid AI on a Cloud Provider Marketplace or otherwise made publicly available for Flat Rate Subscriptions, Metered Subscriptions, or other licensing models.
A.22 “Service Description” means the document that describes the scope of services that are specific to certain MantisGrid AI Offerings such as Configuration Services.
A.23 “Service Provider” means a Customer that is in the regular business of utilizing the MantisGrid AI Offerings to provide services to its end customers for a fee.
A.24 “Software Metrics” means operational, diagnostic, health, configuration, licensing, subscription, performance, telemetry, and usage information generated by the operation of the MantisGrid AI Offerings. Software Metrics do not include Customer Data or the content of Customer workloads, applications, or files.
A.25 “Software Order” means your subscription to Public Rates or acceptance of a Private Offer and each Software Order will be binding on us and you, subject to this Agreement and incorporating its terms and conditions by reference.
A.26 “Software Support Services” means the support and maintenance services that we provide you as a component of the MantisGrid AI Offerings.
A.27 “Third-Party Provider(s)” means any third-party provider of products or services to which you have access to, or use of, in relation to the MantisGrid AI Offerings and that is subject to your agreement with such third-party pursuant to Section D.11.a.
B. STANDARD SERVICES TERMS
B.1. Offers; License and Restrictions of Use.
B.1.a Offers. We will provide the MantisGrid AI Offerings, including Licensed Software, Support Services, and any Professional or Configuration Services, as specified in the applicable Order. Licensed Software may be licensed on a Metered Subscription, Flat Rate Subscription, or another licensing model specified in the applicable Order. If the Licensed Software is purchased through a Marketplace, the applicable Public Rates, Private Offer pricing, or other Marketplace-specific pricing accepted by Customer will apply. If Customer purchases the Licensed Software directly from MantisGrid AI, the pricing and subscription terms set forth in the applicable Order will govern. Unless otherwise agreed in writing, upon expiration of a Private Offer, promotional pricing, or other discounted pricing period, the applicable Public Rates or then-current pricing for the applicable licensing model will apply.
B.1.b Configuration Services. All Configuration Services are provided directly by us to you and are governed solely by the terms of this Agreement. MantisGrid AI does not act in the capacity of a subcontractor to any Approved Source for the provision of Configuration Services, and all Configuration Services you may procure through an Approved Source or a Marketplace are on a resold basis only.
B.1.c Devices. One or more Device(s) may be required for certain on-premises, customer-managed, or air-gapped deployments of the Licensed Software. Device(s) may be preloaded or imaged with the applicable Software. The Software installed on a Device does not authorize use of the Licensed Software until the applicable subscription or license has been activated by MantisGrid AI in accordance with the applicable Software Order or Marketplace offer.
B.1.d Cloud Providers. Cloud Providers may provide the underlying infrastructure on which MantisGrid AI hosts and operates the MantisGrid AI Offerings as a Software-as-a-Service (SaaS) offering. Cloud Providers may also provide the infrastructure on which Customer operates its applications, workloads, data, and other resources that are monitored, managed, or optimized by the MantisGrid AI Offerings. Cloud Providers are Third-Party Providers, and the availability, performance, security, and operation of their services are governed by the applicable agreement with the Cloud Provider. MantisGrid AI is not responsible for failures or limitations of a Cloud Provider and shall not be obligated to provide any service level, warranty, or performance commitment beyond those expressly set forth in this Agreement.
B.1.e. Restrictions. Customer shall not: (i) access or use the Services except through the interfaces, APIs, and methods expressly authorized by the Company; (ii) distribute, sell, lend, rent, lease, transfer, or grant any rights in or to all or any portion of the Services or documentation; (iii) copy the Services or documentation, in whole or in part; (iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Services or documentation; (v) except as expressly provided for in this Agreement, use the Services in connection with any externally-deployed commercial or revenue-generating system operated on behalf of third parties; provided, however, that Customer may use the Services in connection with Customer’s production infrastructure, first validated in a non-production or staging environment before deployment to live production infrastructure consistent with this Agreement; (vi) permit third parties to use the Services or documentation, or develop or deploy any system or Services including the Services for use by any third parties; (vii) reverse assemble, reverse compile, decompile, translate or otherwise attempt to discover the source code of any component of the Services; (viii) reproduce, prepare derivative works of, display, perform, rent, lease, sell, license, sublicense, assign, distribute or otherwise transfer the Services or documentation or any components thereof; or (ix) access or use the Services or documentation in order to build a competitive product or service.
B.1.f. Your Responsibilities. You shall: (i) provide us with Licensed Unit information through the automated functionality of the MantisGrid AI Platform, or in the event that such automated functionality is inoperable, by reasonable inspection and audit; (ii) install Software updates, patches, and fixes as we make them available to you in order to maintain the Software at its current version; (iii) prevent unauthorized or unlawful access to, or use of, the MantisGrid AI Offerings; (iv) maintain the security and integrity of the MantisGrid AI Offerings to which you have access or which are in your possession or control and immediately report any security breaches or suspected security breaches that affect or may affect the MantisGrid AI Offerings by contacting us through Software Support Services; and (v) perform your obligations in this Agreement and comply with MantisGrid AI’s reasonable requests in connection with the MantisGrid AI Offerings.
B.1.g. Service Providers. We may authorize you to act in the capacity of a Service Provider pursuant to a Software Order. Under such authorization, you remain designated as the Customer under this Agreement and your use of the MantisGrid AI Offerings is governed by this Agreement. As a Service Provider, you shall: (i) obligate your end customers to adhere to these Terms of Use to the extent that such end customer has direct access to, or use of, the MantisGrid AI Offerings; (ii) remain responsible to us for your end customer’s non-compliance with these Terms of Use.
B.1.h Evaluation. We may grant you a temporary license to evaluate the MantisGrid AI Offerings limited strictly to the purpose of achieving the written objectives of the evaluation and for a limited period of time. If we permit you to access and use MantisGrid AI Offerings for a temporary evaluation period without any Fees, then NOTWITHSTANDING ANY CONTRARY PROVISION IN THIS AGREEMENT, ANY SUCH EVALUATION WILL BE MADE AVAILABLE BY US TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, (I) WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY TO THE FULLEST EXTENT PERMITTED BY LAW AND (II) WITHOUT ANY OBLIGATION OF US TO PROVIDE TECHNICAL SUPPORT OR ANY INDEMNITY FOR YOUR ACCESS TO, AND USE OF, THE MantisGrid AI OFFERINGS DURING THE EVALUATION PERIOD.
B.2. Service Descriptions. The Service Descriptions for Software Support Services and Configuration Services are located at https://mantisgrid.ai/support-services
B.3. Use of Subcontractors. We may use subcontractors in our reasonable discretion in the performance of any MantisGrid AI Offerings ordered under this Agreement; provided, however, we shall remain fully responsible and liable for the performance of any such subcontractor. Under no circumstances shall any Approved Source, Third-Party Provider be a subcontractor of MantisGrid AI.
B.4. Data Use, Security, and Data Privacy.
B.4.a. Data Use and Security. The MantisGrid AI Offerings may be provided as: (i) a Software-as-a-Service (SaaS) offering hosted and managed by MantisGrid AI; and/or (ii) where applicable and in accordance with the Documentation, deployed within Customer’s cloud environment, on Customer’s premises, or in an air-gapped environment.
As described in the definition of Customer Data, Customer provides Customer Data to MantisGrid AI as part of deploying, integrating, configuring, operating, or supporting the MantisGrid AI Offerings. MantisGrid AI may collect, access, store, transmit, analyze, and otherwise process Customer Data solely as necessary to provide, operate, configure, maintain, secure, troubleshoot, support, monitor, and improve the MantisGrid AI Offerings and the related Software Support Services, Professional Services, and Configuration Services requested by Customer. Customer Data shall be treated as Customer’s Confidential Information and processed only in accordance with this Agreement, the applicable Documentation, and, where applicable, the Data Processing Addendum.
Customer’s use of the MantisGrid AI Offerings may generate Software Metrics, including operational, diagnostic, health, configuration, licensing, subscription, performance, telemetry, and usage information relating to the operation and use of the MantisGrid AI Offerings. MantisGrid AI may collect and use Software Metrics solely to provide, operate, administer, monitor, secure, maintain, support, troubleshoot, improve, and develop the MantisGrid AI Offerings, including subscription verification, license enforcement, capacity management, billing, service reliability, analytics, and product enhancement.
MantisGrid AI may aggregate and de-identify Customer Data and Software Metrics and use such aggregated and de-identified information for analytics, benchmarking, service improvement, artificial intelligence and machine learning model development and training, research, capacity planning, and other lawful business purposes related to MantisGrid AI’s business and the MantisGrid AI Offerings, provided that such information does not identify, and cannot reasonably be used, directly or indirectly, to identify Customer, any authorized user, or any individual, or to reconstruct or re-identify Customer Data.
B.4.b. Data Privacy. Each Party shall comply with applicable data protection laws in connection with this Agreement. MantisGrid AI will process Personal Data in accordance with its Privacy Policy and, where applicable, the MantisGrid AI Data Processing Addendum (“DPA”). To the extent required by applicable law, the Parties agree that the applicable Standard Contractual Clauses or other lawful transfer mechanism set forth in the DPA shall govern transfers of Personal Data. In the event of any conflict between this Agreement and the applicable Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
C. PROCURE TO PAY TERMS
C.1 Fees and Payment. Customer shall pay all Fees specified in the applicable Software Order, Order Form, or Marketplace offer. Unless otherwise specified, all invoices issued directly by MantisGrid AI are due within thirty (30) days of receipt.
For purchases made directly from MantisGrid AI:
- Flat Rate Subscriptions are invoiced in advance for the applicable subscription term.
- Metered Subscriptions are invoiced monthly in arrears based on Customer’s actual Licensed Unit consumption at the applicable Public Rates or Private Offer rates.
- Configuration Services and any other professional services are invoiced in advance unless otherwise specified in the applicable Software Order.
If Customer purchases the MantisGrid AI Offerings through an authorized reseller, distributor, or cloud marketplace (including Microsoft Azure Marketplace, AWS Marketplace, or Google Cloud Marketplace), Customer’s payment obligations shall be governed by the applicable terms and conditions of such reseller or marketplace. To the extent permitted by applicable law and the applicable marketplace terms, MantisGrid AI reserves the right to collect unpaid Fees directly from Customer if amounts due for the MantisGrid AI Offerings are not paid through the applicable marketplace or reseller.
For Flat Rate Subscriptions, whether purchased directly from MantisGrid AI or through a marketplace, Customer’s use of the MantisGrid AI Offerings is subject to the Licensed Units, capacity, node limits, device limits, GPU limits, cluster limits, virtual machine limits, or other usage restrictions specified in the applicable Software Order, Order Form, or marketplace listing. MantisGrid AI may monitor Customer’s usage and enforce such limits, including restricting the onboarding, monitoring, management, or use of additional resources until Customer upgrades its subscription or purchases additional capacity.
Unless otherwise expressly stated in the applicable Software Order, Order Form, or Marketplace offer, all Fees shall be paid in United States Dollars, are non-cancelable, and are non-refundable, except as required by applicable law or the applicable Marketplace terms.
MantisGrid AI may change its Fees or applicable charges for any renewal term upon at least thirty (30) days’ prior written notice to Customer, including by email, unless otherwise specified in the applicable Software Order, Marketplace offer, or applicable Marketplace terms.
Any late payment of amounts invoiced directly by MantisGrid AI shall accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, together with any reasonable costs of collection.
Except as otherwise expressly provided in this Agreement, each Party shall bear its own costs and expenses incurred in performing this Agreement. All amounts payable to MantisGrid AI shall be paid free and clear of any withholding or deduction, except as required by applicable law. Customer shall be responsible for any bank charges, transfer fees, duties, or similar charges associated with its payment obligations.
If Customer fails to pay any undisputed amount when due, MantisGrid AI may, in addition to any other rights or remedies available under this Agreement or applicable law, suspend Customer’s access to the MantisGrid AI Offerings until all outstanding amounts are paid in full. Suspension, termination, or expiration of this Agreement shall not relieve Customer of its obligation to pay any Fees accrued prior to the effective date of such suspension, termination, or expiration, or any Fees due under a non-cancelable subscription or applicable License Period.
C.2. Taxes. The Fees do not include, and you shall be solely responsible for, all direct or indirect local, state, federal or foreign sales, use, GST, value-added withholding, or similar taxes or levies, other than taxes based on the income of MantisGrid AI. Such taxes or levies shall not be considered a part of a deduction from or an offset against Fees. If applicable, the customer shall provide evidence of its exemption from such taxes.
D. GENERAL LEGAL TERMS
D.1. Intellectual Property. Ownership of Intellectual Property. The Services contain proprietary and confidential information of the Company and its licensors. Except to the extent licenses are expressly granted hereunder, each party and each party’s licensors, respectively, retains all right, title and interest in and to all patent, trademark, trade secret rights, inventions, copyrights, know how and trade secrets in and to that party’s respective products and services. The Company retains all right, title and interest in and to any work product created by the Company in the course of providing the Services and any service or support under this Agreement.
D.1.a. Proprietary Rights. MantisGrid AI and its licensors retain all right, title and interest, including all related intellectual property rights, in and to: (i) the MantisGrid AI Offerings; (ii) Documentation; (iii) its Confidential Information; (iv) any technology developed from any services (including Configuration Services and Software Support Services) performed by us for you; and (v) all derivative works, improvements or modifications to the MantisGrid AI Offerings. No rights are granted to you except those expressly set forth in this Agreement. For clarity, Configuration Services performed by MantisGrid AI will not include custom work product or other work for hire deliverables. You retain all right, title and interest in and to all Customer Data.
D.1.b. Feedback. Customer will use reasonable efforts to report to the Company any “bugs” or reproducible errors in the Services as they are encountered and to provide feedback on suggested features and related. Customer agrees that any information or feedback Customer may provide to Company related to the Services or this Agreement is non-confidential and Customer grants Company a non-exclusive, worldwide, fully paid up, perpetual and irrevocable license to use this information/feedback solely for the purpose of improving, developing and commercializing the company’s Product & Services provided under this Agreement.
For the avoidance of doubt, Company may use feedback to improve, develop, and commercialize its products and services, provided that such use does not incorporate or disclose Customer’s Confidential Information or result in a product or service that is directly competitive with Customer’s business.
Customer grants MantisGrid AI the right to use Customer Data, including logs, telemetry, metrics, and usage information, solely to provide, operate, support, maintain, secure, enhance and troubleshoot in the event of service issues. MantisGrid AI may also use aggregated and de-identified data derived from Customer Data to improve its products and services, provided such data does not identify Customer or disclose Customer’s Confidential Information.
D.1.c Grant of Rights. Subject to the terms and conditions of this Agreement and during the applicable subscription or license term specified in the applicable Software Order, Marketplace offer, or other Order, MantisGrid AI grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to: (i) access and use the MantisGrid AI Offerings solely for Customer’s internal business purposes in accordance with this Agreement and the applicable Order; and (ii) use any Documentation, training materials, or other materials provided by MantisGrid AI solely to support such authorized use. Customers will have access only to the Documentation made available by MantisGrid AI. This Agreement does not entitle Customers to any additional Documentation or materials unless expressly stated in the applicable Order. All Documentation provided by MantisGrid AI is owned by MantisGrid AI or its licensors and is licensed, not sold, to Customer solely for use during the applicable subscription or license term. Except as expressly permitted under this Agreement, Customer may not copy, modify, distribute, disclose, or otherwise make the Documentation available to any third party. MantisGrid AI and its licensors retain all rights, title, and interest in the Documentation and all intellectual property rights not expressly granted to Customer under this Agreement.
D.2. Confidentiality.
D.2.a Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Company’s Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
The Receiving Party will use industry-standard security practices and controls, including at minimum: (i) encryption of Confidential Information at rest and in transit; (ii) role-based access controls limiting access to need-to-know personnel; and (iii) prompt written notification to the Disclosing Party within 72 hours upon discovery of any actual or reasonably suspected unauthorized access to or disclosure of Confidential Information.
The Receiving Party shall (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent.
D.2.b Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
D.3. Warranties.
D3.a Mutual Warranties. Each Party represents and warrants to the other Party that it has the power and authority to execute, deliver, and perform its obligations under this Agreement.
D.3.b MantisGrid AI Warranties. We warrant to you that the MantisGrid AI Offerings will operate in conformity in all material respects with the applicable Documentation and that any Configuration Services will be performed in a professional and workmanlike manner consistent with generally accepted industry standards. Your sole and exclusive remedy, and our sole liability, for any breach of this warranty shall be for us to correct or re-perform the applicable MantisGrid AI Offerings at our expense. The limited warranty in this Section D.3.b shall only apply if you notify us in writing of a breach of this warranty; and ii. shall not apply if the error or failure in performance was caused by misuse, unauthorized modifications, Third-Party Provider hardware, software or services, Customer Data or Force Majeure Event.
D.3.c. Customer Warranties. You represent and warrant that: (i) your use of the MantisGrid AI Offerings and all Customer Data is always compliant with, and all, applicable laws and regulations; and (ii) you have sufficient rights in the Customer Data to grant the rights granted to us herein and that the Customer Data does not infringe or otherwise violate the rights of any third-party and, solely for Customers based in the EEA, (iii) you have provided adequate fair processing information to data subjects (on your and our behalf) in respect of the processing of Personal Data required for the performance of this Agreement and (iv) you have on Our behalf complied with the information obligations set out in SCCs. If you export Customer Data from one jurisdiction to another jurisdiction, you will ensure that you have all legal rights to do so including, without limitation, in compliance with all applicable data protection laws.
D.3.d. Disclaimers of Warranty. EXCEPT FOR THE LIMITED WARRANTY IN THIS SECTION D.3, WE PROVIDE THE MantisGrid AI OFFERINGS ON AN “AS IS” AND “AS AVAILABLE” BASIS. NEITHER MantisGrid AI NOR ITS SUPPLIERS MAKE OTHER WARRANTIES OF ANY KIND AND SPECIFICALLY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, STATUTORY AND OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, SATISFACTORY QUALITY OR NONINFRINGEMENT. WE DO NOT WARRANT THAT THE MantisGrid AI OFFERINGS ARE ERROR-FREE OR THAT YOU WILL BE ABLE TO ACCESS OR USE MantisGrid AI OFFERINGS WITHOUT PROBLEMS OR INTERRUPTIONS.
D.4. Limitations of Liability. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY: (I) LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (II) CUMULATIVE AMOUNTS IN EXCESS OF THE FEES PAID BY YOU FOR THE MantisGrid AI OFFERINGS DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. EXCEPT AS SET FORTH BELOW, THE FOREGOING LIMITATIONS ON LIABILITY WILL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS, EITHER PARTY’S BREACH OF SECTION D.2 (CONFIDENTIALITY), OR YOUR BREACH OF YOUR PAYMENT OBLIGATIONS OR ANY LICENSE OR USE RESPONSIBILITIES OR RESTRICTIONS. FOR THE AVOIDANCE OF ANY DOUBT, UNDER NO CIRCUMSTANCES WILL WE HAVE ANY LIABILITY TO YOU FOR COST OF PROCUREMENT OF REPLACEMENT OF SUBSTITUTE PRODUCTS OR SERVICES.
D.5. Indemnification.
D.5.a. MantisGrid AI Indemnity. We shall defend you, at our cost, from and against all third-party claims alleging that the MantisGrid AI Offerings infringe a third-party’s copyright, trade secret, trademark or patent. In addition, we will indemnify and hold you harmless for any damages and losses (including reasonable attorney’s fees) awarded against you or agreed by us in settlement of such claims.
In response to a third-party claim per this Section D.5.a or if such a claim is in our determination likely to occur, we may: (a) obtain for you the right to use the allegedly infringing item; (b) substitute a non-infringing replacement for such item; or (c) if in our opinion neither item (a) nor (b) are reasonably available, terminate the Agreement and refund to you the Fees paid by you in an amount pro-rated for the portion of the Offer Period for the MantisGrid AI Offerings which was paid by you but not rendered by us. ii. Our indemnification obligation set out in this section shall not apply if the claim arises out of: (a) the use of the MantisGrid AI Offerings in combination with any software, hardware, network or system not supplied by us where the alleged infringement is caused by such combination; (b) any modification or alteration of the MantisGrid AI Offerings other than by us; (c) your continued allegedly infringing activity after being informed of a modification that would avoid the alleged infringement; (d) our compliance with your designs, specifications or instructions; or (e) the use of the MantisGrid AI Offerings other than in accordance with the terms and conditions of this Agreement including the Documentation. THIS SECTION D.5.a SETS FORTH OUR SOLE LIABILITY, AND YOUR SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT or misappropriation.
D.5.b. Customer Indemnity. You shall defend us, at your cost, from and against all third-party claims related to your use of the MantisGrid AI Offerings in breach of your warranties as set out in Section D.3.c. In addition, you will indemnify and hold us harmless for any damages and losses (including reasonable attorney’s fees) awarded against us or agreed by us in settlement of such claims.
D.5.c. Procedure. Any indemnification obligation set forth in this section (yours or ours) is subject to the indemnifying Party receiving: (i) immediate written notice from the indemnified Party of such claim; (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation of the indemnified Party at indemnifying Party’s expense.
D.6. Term and Termination; Suspension of MantisGrid AI Offerings.
D.6.a Term. This Agreement begins on the effective date of a Software Order and continues until either: a) you discontinue your use of the Software; or b) it is terminated in accordance with this Section D.6.
D.6.b Termination. Either Party may terminate this Agreement as follows: (i) upon thirty (30) days written notice if the other Party breaches any material provision of this Agreement and does not cure such breach; (ii) effective immediately and without notice if the other Party ceases to do business or otherwise terminates its operations, except as a result of a permitted assignment per this Agreement; or (iii) if the other Party seeks protection under any bankruptcy, receivership, trust deed, creditor’s arrangement or comparable proceedings, if such proceeding is instituted against that Party and not dismissed within sixty (60) days thereafter. Any termination of this Agreement will automatically terminate all Software Orders.
D.6.c Effect of Termination. Upon the termination or expiration of this Agreement, Customer’s right to access and use the MantisGrid AI Offerings shall immediately cease, except as otherwise expressly provided in this Agreement or the applicable Software Order. Termination or expiration of this Agreement shall not relieve Customer of its obligation to pay any Fees accrued prior to the effective date of termination or expiration, including any Fees due under a non-cancelable subscription, applicable License Period, or Software Order. If Customer terminates this Agreement pursuant to Section D.6.b due to MantisGrid AI’s uncured material breach, Customer shall be entitled to a prorated refund of any prepaid, unused Fees for the terminated portion of the applicable subscription term.
The following provisions shall survive the termination or expiration of this Agreement: Definitions (Section A), Data Use, Security, and Data Privacy (Section B.4), Fees and Payment (Section C.1) solely with respect to accrued payment obligations, Taxes (Section C.2), General Legal Terms (Section D), Confidentiality (Section D.2), Warranties and Disclaimers to the extent applicable (Section D.3), Limitations of Liability (Section D.4), Indemnification (Section D.5), this Section D.6.c, and Miscellaneous (Section D.11), together with any other provisions that by their nature are intended to survive termination or expiration.
D.6.d Suspension. If your payment of Fees is overdue (including for non-payment by your Approved Source) or if we in good faith believe that your use of the MantisGrid AI Offerings breaches this Agreement, we reserve the right to, and in addition to any of our other rights or remedies, suspend your access thereto without liability to you until, as applicable, such Fees are paid in full or you are no longer in breach of this Agreement.
D.7 Press Release and Publicity. Neither Party may issue a press release in connection with this Agreement, or the transaction contemplated herein without the prior written consent of the other Party; except that we may use your name and logo on our website and in our promotional materials as part of a general list of customers unless you inform us otherwise.
D.8 Assignment. Neither Party may assign this Agreement or any of its rights or obligations, without the other Party’s prior written consent; except that we may assign this Agreement without your consent, in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of MantisGrid AI assets. Any non-permitted assignment per this section is void and of no effect.
D.9 Export. Pursuant to all relevant export laws and regulations, including but not limited to the U.S. Export Administration Regulations (collectively, “Export Controls”), you expressly agree that you shall not, and shall cause your representatives to agree not to, export, directly or indirectly, re-export, divert, or transfer the MantisGrid AI Offerings, Documentation or MantisGrid AI Confidential Information to any destination, company or person restricted or prohibited by Export Controls.
D.10 Government Users. If you are a branch or agency of the United States Government, the MantisGrid AI Offerings, Documentation and any other services provided by us hereunder, are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 49 C.F.R. 12.212, and are provided to you either: (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3.
D11. Miscellaneous.
D.11.a Third-Party Providers. You may need, or otherwise choose, to engage Third-Party Providers for use with the MantisGrid AI Offerings. We assume no responsibility for, and specifically disclaim any liability or obligation with respect to, any Third-Party Providers; and any exchange of data or other interaction between you and such Third-Party Provider is solely between you and such Third-Party Provider. You acknowledge and agree that it is your responsibility to ensure that your use of such Third-Party Providers does not cause you to breach in any way your obligations to us with respect to the MantisGrid AI Offerings and that your use of the MantisGrid AI Offerings do not in any way cause you to breach your obligations to any third-party.
D.11.b Independent Contractors. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.
D.11.c Force Majeure. Neither Party shall be liable to the other Party 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 occur which are beyond the reasonable control of such Party (“Force Majeure Event”), 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. Any Party claiming a Force Majeure Event hereunder shall provide prompt notice thereof to the other Party and make commercially reasonable efforts to overcome the effect of such Force Majeure Event.
D.11.d Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
D.11.e Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the United States of America and the State of California, excluding its conflict of laws rules. The United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act are specifically excluded from application to this Agreement. The Parties hereby submit to the exclusive jurisdiction of, and waive any venue jurisdiction or venue objections against, the state and Federal courts located in Santa Clara County, California.
D.11.f Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the Parties at the addresses set forth on the Software Order or at such other address as may be given in writing by either Party to the other and shall be deemed to have been received by the addressee: (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (iv) via electronic mail (“email") which includes a subject header that states this e-mail is a formal notice under our Agreement. If to MantisGrid AI, it should be sent to sales@mantisgrid.ai; to Customer <include customer email address>. Emails are deemed to be received the first business day after the email is sent.
D.11.g Modifications or Waivers. No modification, waiver of rights or amendment of this Agreement shall be effective and binding, unless in writing signed by the duly authorized representatives of both Parties. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement.
D.11.h Entire Agreement and Precedence. This Agreement, including each Software Order and any Service Description are the complete and exclusive statement of the mutual understanding of the Parties and supersedes all previous written and oral agreements and communications relating to the subject matter of this Agreement. Purchase orders and similar documents issued by you are for administrative purposes only, and any additional or different terms or conditions contained in any such order shall not apply even if the order is accepted or performed on by us and such terms are hereby rejected. In the event of a conflict between any Software Order and this Agreement, the Software Order will control. Furthermore, in the event of a conflict between any Service Description and this Agreement, the Service Description will control.