EFFECTIVE September 1, 2023. These Terms replace and supersede all prior versions (including those referenced as an End User License Agreement / EULA).
Now, therefore, in consideration of the foregoing, the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, both you and M3 (each a “Party” and collectively referred as “Parties“) agree as follows:
1. DEFINITIONS. Capitalized terms used in these Terms are defined in context or this Section 1.
1.1. “Affiliate” means any individual or business entity that controls, is controlled by, or is under common control with a party where control means ownership, directly or indirectly, of the voting power (or equivalent).
1.2. “Agreement” means these Terms, the Order, the Supplementary Documents and, if applicable, the Data Processing Addendum.
1.3. “Bundled Products” means third-party software, products or services that are not owned by M3 or licensed under this Agreement that may be used or integrated with the Offerings.
1.4. “Customer Materials” means any content, code or data provided by you in connection with your use of, or resulting from your authorized use of, the Offerings.
1.5. “Documentation” means the then-current M3 official user documentation as provided by M3 for the applicable Offering(s).
1.6. “Fees” means standard recurring fees, user fees, applicable setup fees, interest and late payment fees on past due amounts (including without limitation collection costs and attorney fees), finance charges, return check fees, and re-activation, and any and all other applicable fees for all properties, entities, non-operating entities, or any unique instance of a company or property setup within the Offerings, this includes all inactive properties and usernames that have not been communicated in writing to M3 to discontinue service and access.
1.7. “Intellectual Property” mean all registered or unregistered worldwide intellectual property rights, including copyrights, trademarks, service marks, trade secrets, patents, patent applications and moral rights.
1.8. “Order” means the order document or online order on a form approved by M3 that you submit that specifies the Offerings provided under the Agreement and ordered and the applicable Term (if different), quantities, license metrics, Fees, billing and payment terms and other terms.
1.9. “Statement of Work” means an Order for Professional Services.
1.10. “Professional Services” means professional services (excluding support) and any deliverables, as applicable, provided by M3 and described in the applicable Order.
1.11. “Supplementary Documents” means any ancillary documents referenced in the Agreement as applicable to your ordered Offerings.
1.12. “Support Plan” means the standard M3 support plan unless otherwise identified in the applicable Order.
1.13. “Taxes” means any sales, value added, good and services, gross receipts, business and occupation, and other taxes (other than taxes on M3’s income or property), export and import fees, customs duties and similar charges imposed by any government or other authority.
1.14. “Term” means the Term specified duration of this Agreement and the applicable Orders defined in Section 9 – Term and Termination.
1.15. “User” means your and your Affiliate’s employees, contractors, and service providers that are authorized to use the Offerings.
2. AUTHORIZED USE OF OFFERINGS
2.1. SaaS Products Offerings. For a software-as-a-service Offering (“SaaS Product”) specified in an Order and provided under the Agreement, M3 grants to you a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the SaaS Product and Documentation during the Term solely for your internal business purposes subject to the terms of the Agreement, including payment of Fees. SaaS Products means our hosted or cloud-based products that are provided by us on a software-as-a-service basis including any Bundled Products needed to operate with Customer Systems. “Customer Systems” means servers, systems, platforms, networks, applications, databases, computers, mobile devices, or other endpoints (physical or virtual) from which SaaS Products are accessed, that are owned, operated or managed by, or on behalf of, you and your Affiliates.
2.2. Restrictions. You and your Users must not: (1) decompile, disassemble, reverse engineer, attempt to identify source code, modify or create a derivative work of any Offerings except as expressly permitted by law (and then only with advance written notice to M3); (2) copy, reproduce, republish, post or transmit any Offerings (except for archival copies, solely for backup purposes, of any software that M3 makes available to you for download); (3) sell, resell, rent, lease, license, sublicense, assign, distribute or transfer any Offerings to a third party except as authorized by M3 under a written agreement; (4) permit anyone other than Users to access and use any Offerings; (5) incorporate any Offerings into a product or service that you provide to a third party except as authorized by M3 under a written agreement; (6) use any Offerings to develop or operate competitive products or services; (7) publish or disclose information regarding the availability, performance or functionality of any Offerings to a third party, including any benchmarking; (8) remove, alter or obscure any proprietary rights notices contained in any Offerings; (9) use the Products in any hazardous environments in which the failure of the Products could result in death, personal injury, or physical or environmental damage; (10) attempt to gain unauthorized access to or circumvent any technical limitations on the use of any Offerings; (11) use any Offerings to store or transmit malicious code, Trojan horses, malware, spam, viruses or other destructive technology; (12) disrupt or interfere with the security, integrity or availability of any Offerings or any third parties’ use of any Offerings; (13) perform any attack, scan, test, probe or penetration other security assessment of the SaaS Products hosted in M3’s third party cloud environments; (14) use any Offerings in a way that violates the terms of the Agreement, the rights of others or any applicable law; or (15) allow, encourage or assist any third party to do any of the foregoing. Any breach of this Section 2.2 will be considered a material breach.
2.3. Authorized Utilization Verification. Your use of the Products is limited to the edition, license type, quantities and metrics stated in the Order. You are responsible for all actions taken by Users or through access credentials provided by us for the Products (“User IDs”). You will notify M3 immediately if you become aware of any unauthorized use of the SaaS Products or a User ID. M3 may restrict access to features not licensed, even if made accessible at the time of delivery. You agree M3 may, at any time during the Term, verify your compliance with this Agreement including without limitation the number of database utilization, properties activated, and authorize Users. If the verification shows in any way usage and utilization not permitted under the Agreement so that additional fees apply, then, without limiting M3’s rights at law or in equity, you agree to pay the additional Fees due for the incremental utilization and any applicable related maintenance and support fees, if any, immediately upon invoice. You agree that such invoice will reflect the binding statement setting forth the amount (the “True-Up Amount”) for to be paid by you for all such incremental utilization as Fees due for the remainder of the applicable Term.
2.4. Support. For M3 to respond to the Customer’s reports of difficulties or problems with Software and to assist in diagnosis of faults, Customer must submit all requests for support through M3’s Help Center (https://help.m3as.com/) and provide adequate information and documentation to enable M3 to recreate the problem. M3, following commercially reasonable efforts and failure to recreate the problem, may notify the Customer that the problem could not be recreated, located, or identified, if such is the case. M3 will not be obligated to provide support for issues arising from unauthorized use of the SaaS Products, use of the SaaS Products not in accordance with the Documentation or Professional Services for which M3 charges separate Fees.
2.5. Bundled Products. Third-party software, products or services included as a Bundled Product is licensed to you under their separate terms, and those terms apply to your use of the Bundled Products. M3 does not control or review such third-party software, products, or services. If required by such third party, you agree to sign their terms separate from this Agreement.
2.6 Updates. SaaS Product(s) may periodically be updated with tools, utilities, improvements, third party applications, or general updates to improve the Offerings. You agree to receive these updates.
2.7. Professional Services. You may purchase Professional Services under the Agreement. Professional Services are described in the applicable Order and are subject to the Professional Services Addendum referenced on an Order.
2.8. Evaluation Licenses. At its sole discretion, M3 may provide certain SaaS Product Offerings to you for free or under other evaluation use licenses (collectively, “Evaluation Use Licenses”). Your use of a SaaS Product Offering under an Evaluation Use License is: (1) subject to these Terms and any additional terms we specify when we provide the Evaluation Use License to you; and (2) restricted to the use for which it is provided during the Term. Evaluation Use Licenses for trials are restricted to use for internal evaluation. Evaluation Use Licenses for alpha, beta, pilot, or other pre-release versions of SaaS Products or features are restricted to use for pre-release testing. You understand that SaaS Products and features provided under Evaluation Use Licenses for pre-release testing are still under development, may be inoperable or incomplete, and may contain more errors and bugs than generally available versions of SaaS Products. All information regarding the features or performance of SaaS Products provided under an Evaluation Use License is our Confidential Information. We may terminate an Evaluation Use License at any time for any reason at our sole discretion. Use of multiple free accounts to avoid incurring fees may result in termination of your account(s) or conversion to a paid subscription. Evaluation Use Licenses are intended for use in a non-production environment. Any use by you of SaaS Products under an Evaluation Use License, including any use in a production environment, is at your own risk. To the maximum extent permitted by law, SAAS PRODUCTS UNDER AN EVALUATION USE LICENSE ARE PROVIDED “AS IS” WITHOUT SUPPORT, WARRANTY, OR INDEMNIFICATION OF ANY KIND, EXPRESS OR IMPLIED. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, M3’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR EVALUATION USE LICENSES WILL NOT EXCEED USD$100.
3. PAYMENT TERMS AND ORDERING
3.1. Ordering. You may purchase Offerings directly from M3, its Affiliates or through a M3 authorized reseller. The Offerings will be made available to you on your acceptance of an Order. An Order is accepted by you when you sign the Order or when you submit an online Order. The parties agree that Customer’s signature only is sufficient to create a binding contract on any unaltered order form provided by M3. All Orders are non-cancelable and non-refundable except as expressly provided in these Terms. You may authorize your Affiliates to submit Orders under these Terms. You remain responsible for your Affiliates’ compliance with the Agreement. Sections 3.2-3.6 do not apply if purchased through an M3 authorized reseller.
3.2. Taxes. All Fees are exclusive of Taxes. You will pay or reimburse M3 for Taxes related to transactions under the Agreement and M3 will remit Taxes to the relevant taxing authorities. If you are required by applicable law to withhold and remit any amounts for payments due under the Agreement, you will inform us of the withholding amount with the Order and we will invoice you for the gross up amount so that M3 receives the Fees due in full. M3 can rely on the name and address you provide to M3 as being the place of supply for Taxes. If you are Tax exempt, you will provide us with a copy of the exemption certificates from the relevant taxing authorities with the Order. Upon reasonable request, we will provide you documentation of payment of Taxes to the relevant taxing authorities.
3.3. Fees. Unless otherwise agreed to in an Order, M3 shall render invoices to Customer in U.S. dollars, at the beginning for each month for all active properties, entities, non-operating entities, or any unique instance of a company or property setup within the Offerings. The invoice shall indicate the product used, the price per product, and user Fees or other Fees, as well as the total amount then due. Except as otherwise provided in an Order, invoices shall be issued monthly in the month of service for the Offerings active during that period and shall be due and payable within fifteen (15) days from date of the invoice. M3 may change the fees that apply under an Order by providing you written notice. Unless mutually agreed to in writing, Fee changes become effective upon the date of invoice and an equal-length term will renew upon the expiration of the prior Term. M3 will not be responsible for processing Fees incurred by your financial institution.
3.4. Invoicing Disputes. Customer shall notify M3 of any invoice dispute in writing within the time frame specified for payment of the invoice. The Parties shall work in good faith to resolve any invoicing disputes as quickly as reasonably possible. The non-payment of any disputed items shall not constitute a breach under this Agreement. Customer shall pay all amounts due that are not in dispute within the time frame specified above. M3 has the right to disable user access in the event of non-disputed non-payment after 30 days past due for items which are not in dispute, or in the event any dispute is not resolved within 30 days of the date M3 receives notice of the dispute. The Parties agree that they will not invoke the informal dispute resolution procedures (Section 12.3) or arbitration terms (Section 12.4) to resolve an invoice dispute until after all opportunities set forth in this Section 3.3 to resolve the invoice dispute have been exhausted. The Parties further agree that in the event Customer elects Auto Pay, as described in Section 3.6, as a method for paying M3 invoices, M3’s right to disable user access due to non-payment is revoked unless there are insufficient funds or until Customer decides to no longer enroll in Auto Pay.
3.5. Payment Responsibility. It is the responsibility of you the Customer to timely pay all Fees as they come due. M3 requires Customer to set up automatic payments (“AutoPay”), and you agree to set up AutoPay via the M3 approved third party application for amounts due to M3. You authorize M3 to automatically process your invoices for payment on the due date of the invoice(s). If Customer payment and registration information is not accurate, current, and complete, and you the Customer do not notify us promptly when such information changes, we may suspend or terminate your account, terminate your license, and refuse any further use of the Offerings in whole or in part. If you the Customer do not notify us of updates to your payment method (e.g., credit card expiration date), to avoid interruption of your service, we may participate in programs supported by your card provider (e.g., updater services, recurring billing programs, etc.) to try to update your payment information, and you authorize us to continue billing your account with the updated information that we obtain.
3.6 Non-Payment. Customer shall pay all amounts due that are not in dispute within M3 specified terms on invoice. M3 has the right to disable user access in the event of non-payment after 30 days past due for items which are not in dispute, or in the event any dispute is not resolved within 60 days of the date M3 receives notice of the dispute. M3 has the right to pursue Customer for non-payment, which includes reporting to credit agencies, turning over to third party collection agency, and to pursue legal actions, and you agree to pay for such costs. You agree M3 may modify any late payment fees, finance charges, return check fees, reactivation fees, and any other related fees associated with collections upon thirty (30) days’ notice and that continued use of the Offerings after thirty (30) days’ notice constitute acceptance of the Fee structure.
4.1. M3 Ownership. M3 shall retain all ownership and/or proprietary rights to the Offerings and its trademarks, copyrights, patents, trade secrets, and other intellectual property rights and to any commercially available products of M3 that are provided to You (“M3 Property”). You receive only the right to use the Offerings and receive the Professional Services, subject to Customer’s compliance with the terms and conditions of this Agreement and any applicable Orders.
4.2. Customer Ownership. You retain ownership of all rights, title, and interest in Customer Materials. You grant M3 a non-exclusive, royalty-free license to host, copy, distribute, display, and otherwise make use of Customer Materials to provide the Offerings for you.
5. DATA PRIVACY AND INFORMATION SECURITY.
5.2. Privacy Addenda. The SaaS Products are not intended to be used to store information that identifies any individual directly or indirectly. To the extent you store any personally identifiable data using the Offerings, you do so at your own risk, and you agree that M3 is not the controller with respect to any such data. If you are in the territorial scope of the General Data Protection Regulation (“GDPR”) or subject to the California Consumer Privacy Act (“CCPA”), additional privacy addenda, including without limitation the Data Processing Addendum, will be incorporated by reference to this Agreement if signed by the Parties.
5.3. Customer Material and Data Obligations. You agree to obtain and maintain all rights and permissions necessary for you to transmit Customer Material data to the SaaS Product, make customer content available to M3 and our service providers in connection with your use of the Offerings, and to grant us the rights to use and process data provided as part of the Customer Materials provided under these Terms. You agree not to transmit Sensitive Personal Information to the SaaS Products or otherwise make Sensitive Personal Information available to M3 or its service providers in connection with the use of the Offerings unless its processing is expressly supported as a feature of the applicable SaaS Product in the applicable Documentation or a written agreement between you and M3. Customer agrees to be responsible for accuracy of all Customer Material data provided to M3 for use with the Offerings and indemnify and hold M3 harmless for any inaccurate Customer Material provided to M3. “Sensitive Personal Information” means an individual’s financial information, sexual orientation, political orientation, race, health, or medical information protected under any health data protection laws or any other type of information protected as sensitive personal information or a special category of personal information under applicable data protection or privacy laws.
6.1. Indemnification and Defense. Each Party (an “Indemnifying Party”) shall defend at its own expense, the other Party, including the other’s directors, officers, employees, and agents (collectively, the “Indemnified Parties”) from and against any and all third Party claims, demands, suits, or actions resulting from, arising out of, or relating to the Indemnifying Party’s (including its employees and anyone acting on its behalf) (i) alleged or actual breach of this Agreement; or (ii) any alleged or actual infringement of any patent, copyright, trademark, trade secret, or other intellectual property or other rights of a third Party arising out of the use of the Offerings as permitted under this Agreement (an “Indemnifiable Claim”). With respect to each Indemnifiable Claim, the Indemnifying Party shall indemnify and hold harmless the Indemnified Parties from and against any and all damages, judgments, awards, expenses, and costs that are awarded and payable to the third Party by a court of competent jurisdiction or that are payable pursuant to a settlement made by the Indemnifying Party.
6.2. Notice of Indemnifiable Claim. The Indemnified Party shall give the Indemnifying Party prompt written notice of any Indemnifiable Claim to the extent reasonably practicable. Such notice shall not diminish the Indemnifying Party’s indemnity obligations hereunder unless and only to the extent that the Indemnifying Party is materially and adversely affected by the Indemnified Party’s failure or delay to give notice.
6.3. Control and Settlement. The Indemnifying Party shall control the defense or settlement of any Indemnifiable Claim provided, however, that the Indemnifying Party shall not agree to any admission of liability or injunctive relief that could reasonably affect the Indemnified Party without the prior written consent of such Indemnified Party. The Indemnified Party shall reasonably cooperate (at the Indemnifying Party’s expense) with the Indemnifying Party in the defense of such claim. Any settlement by the Indemnifying Party must be approved by the Indemnified Party, with such approval not to be unreasonably withheld (except that any settlement requiring the Indemnified Party to make any admission of liability shall be subject to the Indemnified Party’s approval in its sole discretion). The Indemnified Party also has the right to retain its own counsel at its own expense in connection with such claim. If the Indemnifying Party has been advised by the written opinion of counsel to either Party that the use of the same counsel to represent both Parties would present a conflict of interest, then the Indemnified Party may select its own counsel and all costs of the defense shall be borne by the Indemnifying Party.
7.1 Product Warranty. M3 warrants that that the SaaS software Offerings will function substantially in accordance with the Documentation during the applicable Term of the Order.
7.2 Professional Services Warranty. M3 agrees to use commercially reasonable efforts to perform all Professional Services in a timely, professional, and workmanlike manner. If you notify us of an issue that we determine is a breach of this warranty within sixty (60) days of the completion date, we will use commercially reasonable efforts to reperform the services to comply with the warranty. If we determine that it is not commercially feasible to reperform the services, we may terminate the Order for the applicable Professional Services and refund to you the amount that we received for the portion of the Professional Services that failed to conform to the warranty. The remedies provided in this Section are your sole and exclusive remedies for a breach of the Professional Services warranty.
7.3 DISCLAIMER. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 7 OR PROHIBITED BY LAW, M3 MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, WITH RESPECT TO THIS AGREEMENT OR THE OFFERINGS (INCLUDING BUNDLED PRODUCTS) OR ANY SERVICES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND M3 EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES. WITHOUT LIMITING THE FOREGOING, M3 DOES NOT WARRANT THAT: (i) THE OFFERINGS (INCLUDING THE BUNDLED PRODUCTS) WILL OPERATE OR BE AVAILABLE UNINTERRUPTED; (ii) ALL ERRORS CAN OR WILL BE CORRECTED; OR (iii) THE OFFERINGS (INCLUDING BUNDLED PRODUCTS) OR SERVICES ARE SECURE OR WILL MEET CUSTOMER’S BUSINESS, LEGAL, OR REGULATORY REQUIREMENTS. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY WILL BE THAT M3 SHALL USE COMMERCIALLY REASONABLE EFFORTS TO MODIFY THE OFFERINGS TO BE IN COMPLIANCE WITH THE DOCUMENTATION, OR TO REPERFORM THE NONCONFORMING SERVICES. THE LIMITATIONS IN THIS SECTION 7 WILL APPLY EVEN IF THE APPLICABLE WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.
8. LIMITATION OF LIABILITY
8.1 NEITHER PARTY SHALL NOT BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, MULTIPLE, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. The maximum cumulative and aggregate liability of M3 and its Affiliates for claims related to the Agreement will not exceed the Fees paid or payable to M3 for the Offerings that is subject of the claim in the 12 months preceding the event giving rise to the claim. To recover any damages permitted under this Agreement, Customer agrees that any claim against M3 must be provided with Notice within twelve (12) months of initial occurrence of facts supporting such claim.
8.2. Exclusions. The limitations in Section 8 – Limitation of Liability will not apply to: (1) either party’s obligations in Section 6 – Indemnification; (2) either party’s violation of the other party’s Intellectual Property; (3) your payment obligations under Section 3.3 – Fees and Section 3.5 – Payment Responsibility; (4) your violation of Section 4 -Ownership; or (4) any liability that cannot be excluded under applicable law.
9. TERM AND TERMINATION
9.1. Term of Agreement. This Agreement shall commence upon the Effective Date and shall continue, unless otherwise terminated earlier pursuant to the terms of this Agreement, until the later of (i) termination of all work performed by M3 and (ii) the date M3 receives notice from you that you no longer wish to access the Offerings in accordance with the Agreement.
9.2. Term of Order. The term of each Orders shall continue in effect through the earlier of: (i) the date all the services thereunder have been fully completed and accepted (if applicable) by Customer, or (ii) until such time as such Orders expires or is terminated in accordance with its terms, or (iii) this Agreement is terminated.
9.3 Termination for Breach. If a Party breaches this Agreement, the other Party shall have the right to terminate this Agreement by providing written notice of termination, if the breach has not been cured within thirty (30) days following receipt of written notice of the breach. The non-breaching Party shall not be obligated to pay for the breaching Party’s time or resources to cure any breach.
9.4. Termination by Customer. Customer may terminate for convenience by providing Notice (pursuant to Section 12.7) to M3 no later than thirty (30) days’ Notice prior to the upcoming Term renewal or within thirty (30) days’ Notice to any change to Fees assuming all Fees are current.
9.5. Termination by M3. In addition to any other termination rights, M3 shall have the right in its discretion to terminate this Agreement or any Orders under this Agreement, for any reason or for no reason, upon thirty (30) days prior written notice to Customer.
10. CONFIDENTIALITY. As between M3 and Customer, “Discloser” means the Party disclosing Confidential Information and “Recipient” means the Party receiving Confidential Information. “Confidential Information” means all information that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure. Confidential Information is not information that (i) is or becomes, through no act or omission of Recipient, publicly available; (ii) Recipient can demonstrate was rightfully in its possession, without confidentiality obligations, before receipt; (iii) is subsequently and rightfully provided to Recipient by a third Party without restriction on disclosure; or (iv) is independently developed by Recipient without use of or access to Discloser’s Confidential Information. Recipient will safeguard the confidentiality of Discloser’s Confidential Information with at least the same degree of precaution taken by Recipient to protect its own Confidential Information and in no event less than reasonable precaution. Recipient will (i) not disclose or use Discloser’s Confidential Information for any purpose other than as contemplated by and consistent with the terms of this Agreement and (ii) limit access to Discloser’s Confidential Information only to its employees, service providers, and agents (“Representatives”) who have a need to know such Confidential Information and are bound by written confidentiality obligations at least as protective as the requirements of this Agreement. Recipient is responsible for any actions or omissions by its Representative(s) that would violate or breach this Agreement as if such Representative(s) were a Party to this Agreement directly. Additionally, Recipient may disclose Confidential Information to the extent required by law or legal process, provided that Recipient promptly notifies Discloser of such a request or requirement.
11. ADDITIONAL SERVICE AND PRODUCT TERMS
11.1. Professional Service Terms (applies only to Professional Services purchased under the Agreement). If you are purchasing Professional Services under the Agreement, additional terms applicable to Professional Services (“Professional Service Addendum”) apply, supplement these Terms, and supersede any conflicting terms in these Terms. Professional Service Terms will be referenced to a Statement of Work or Order.
11.2. Bundled Product-Specific Terms (apply only to certain third-party software, products or services purchased under the Agreement). Certain integrations may require you agree to additional terms that will be provided to you separately if not available at M3’s website.
12.1. Time of the Essence. Time is of the essence with respect to any payment obligations hereunder.
12.2. Choice of Law. This Agreement shall be construed in accordance with the laws of the state of Georgia, United States of America, excluding conflict of law provisions.
12.3. Informal Dispute Resolution. Prior to taking any action in connection with this agreement, including without limitation by providing a notice or arbitration or instituting a court action, you agree to provide Us with written notice of the dispute and to negotiate with Us in good faith for not less than fourteen (14) days in an effort to resolve such dispute amicably. In the event the dispute is not resolved during such period, you may then seek formal remedies through the arbitration process set forth in Section 12.4 below.
12.4. Arbitration. Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach thereof which has not been resolved by the Parties within the applicable notice or cure period (if any) will be finally resolved by arbitration exclusively (i) administered by the International Center for Dispute Resolution (the “ICDR”) and (ii) under the Commercial Arbitration Rules of the ICDR, (the “ICDR Rules”). Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction to do so. The number of arbitrators shall be one (1), unless the Parties subsequently agree in writing that a three (3) arbiter panel shall be appointed to resolve such particular dispute. The arbitrator(s) shall be appointed exclusively in accordance with the ICDR Rules. The place of arbitration shall be Atlanta, Georgia USA, and the arbitration proceedings shall be conducted in English. Any award of the arbitral tribunal shall be final and binding on the parties to the arbitration and judgment thereon may be entered in any court of competent jurisdiction, and application may be made to any court of competent jurisdiction for injunctive or other relief in aid of such arbitration and for judicial recognition of the award and an order of enforcement. The Parties hereby waive any right to appeal from any award to the extent allowed by applicable law and agree that UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) is applicable to the enforcement of any award. The Parties further waive, to the extent permitted under applicable law, any right that they may have to object to arbitration hereunder on the basis that such an agreement was not entered into after a dispute had arisen. Except as may be required by law, neither a Party nor any arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of app parties to the arbitration.
12.5. Exclusive Method for Resolving Disputes. The Parties agree that the informal dispute resolution procedure followed by arbitration, as set forth in this Section 12, shall be the exclusive methods for resolving the disputes covered hereby, and no party to this Agreement will commence any action or proceeding in any court with respect to any such dispute (individually or as part of a class action) except (i) to enforce this Section 12; (ii) to obtain provisional judicial assistance in aid of arbitration under this Section; or (iii) to enforce an arbitral award made in accordance with this Section. Notwithstanding the foregoing, we may bring a court action in any court of competent jurisdiction without prior notice or notice/cure procedures if we determine that such an action is necessary to obtain immediate injunctive relief.
12.6. Survival. The rights and obligations of any Party which by their nature extend beyond the expiration or termination of this Agreement, shall continue in full force and effect, notwithstanding the expiration or termination of this Agreement, including, without limitation, rights, and obligations with respect to payment terms and invoicing, Confidential Information, ownership of work product, indemnification, limitations of liability, and termination.
12.7. Notices. All notices will be in writing. The Parties agree that electronic communications will satisfy applicable legal notice requirements, including that the notice be in writing. Notice will be deemed given on the next business day after the notice is sent or when made available within the Offering(s). Copy of legal notices to M3 should also be sent to firstname.lastname@example.org.
12.8. Force Majeure. Except for payment obligations, neither Party shall be liable for any delays or other non-performance resulting from circumstances or causes beyond its reasonable control that are not due to the negligence or misconduct of the Party claiming relief under this Section 12.8, including, without limitation, fire or other casualty, act of God, war, terrorism, or other violence, any law, order, or requirement of any governmental agency or authority or other causes beyond the reasonable control of such Party, provided that such Party has informed the other Party of such force majeure event promptly upon the occurrence thereof (including a reasonable estimate of the additional time required for performance to the extent determinable) and such Party uses reasonable commercial efforts to effect the required performance as soon as reasonably practicable.
12.9. Assignment. This Agreement shall inure to the benefit of, and shall be binding upon, the Parties and their respective heirs, successors, and permitted assigns. Customer shall not assign this Agreement or any rights hereunder or, except as expressly permitted in this Agreement, delegate any obligations hereunder to any third Party without M3’ prior written consent, which consent shall not be unreasonably withheld, delayed, or conditioned. Any assignment contrary to the foregoing shall be null and void. Notwithstanding the foregoing, Customer shall have the right without consent to assign this Agreement or rights hereunder or delegate obligations to any entity which has acquired a hotel, whether by foreclosure, merger, or acquisition; provided that (i) any such assignment or delegation to an acquirer is conditioned upon the assignee’s assumption of all obligations and liabilities of the assignor under this Agreement, (ii) prompt notice of the assignment is given to M3, and (iii) payment of any applicable Fees. M3 shall have the right in its discretion to terminate this Agreement immediately in addition to all other available remedies if there is any assignment or delegation in violation of the foregoing.
12.10. Publicity. Without limiting Customer’s confidentiality obligations in this Agreement, and notwithstanding anything in this Agreement to the contrary, Customer shall not advertise, market, disclose, or otherwise make known to others (other than Customer employees) the existence of this Agreement or any information relating to any terms of this Agreement, without the prior written consent of M3, which shall not be unreasonably withheld. However, Customer may disclose such information as may be expressly required under applicable law without such consent from M3; provided that Customer promptly (prior to such disclosure to the extent reasonably possible) notifies M3 in writing of any such disclosure required by law, including any notices received by Customer requiring such disclosure.
12.11. Severability. If any provision of this Agreement is found to be invalid or unenforceable to any extent, then the invalid portion shall be deemed conformed to the minimum requirements of law to the extent possible. In addition, all other provisions of this Agreement shall not be affected and shall continue to be valid and enforceable to the fullest extent permitted by law.
12.13 Waiver. The waiver of a breach of any provision of the Agreement will not constitute a waiver of another provision or a later breach.
12.13. Entire Agreement; Interpretation. This Agreement sets forth the entire agreement and understanding between the Parties with respect to the subject matter hereof, and supersedes any other agreements, discussions, proposals, representations, or warranties, whether written or oral between the Parties with respect to the subject matter hereof. The words “include” and “including” mean “including but not limited to.” Section headings are for convenience only and are not to be used in interpreting this Agreement.
12.14. Remedies. Except as expressly provided in this Agreement, a Party’s exercise of any right or remedy under this Agreement or under applicable law is not exclusive and shall not preclude such Party from exercising any other right or remedy that may be available to it. If either Party seeks monetary damages from the other Party, and a final judgment is entered entirely in favor of the Party defending the monetary damages claim, then the Party who brought such monetary claim shall reimburse the defending Party for its reasonable attorney’s fees and costs paid defending that claim. Otherwise, each Party shall bear its own fees and expenses unless otherwise provided by statute.
12.15. Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties and is not intended to, and shall not be construed to, create any right or confer any benefit on or against any third Party, except as expressly provided in this Agreement.
12.16. Changes. We reserve the right to modify this Agreement, in our sole discretion, at any time. Such modifications may be posted through the Offerings, on our website for the Offerings or when we notify you by other means. We may also change or discontinue the Offerings, in whole or in part. It is important that you review this Agreement whenever we modify it because your continued use of the Offerings indicates your agreement to the modifications.