Version: July 2022
Foundations of Success, Inc. (“FOS”) has developed and licenses to users its online software service currently marketed under the name Miradi and previously known as Miradi Share (the "Service"). This service is offered by FOS and managed by ESA Sitka. These are the standard terms of service applicable to all Miradi users (“Users”), including those with a Personal, Pro, Team, or any other type of subscription.
This Miradi Software License and Terms of Service Agreement (“Agreement”) is entered into by and between Foundations of Success, Inc. (FOS) doing business as Miradi (“Miradi”) and the entity or person placing an Order for or accessing the Service via a Miradi account (“User” or “you”). This Agreement consists of the terms and conditions set forth below and any Orders. If you are accessing or using the Service on behalf of your organization, you represent that you are authorized to accept this Agreement on behalf of your organization, and all references to “you” reference your organization.
The “Effective Date” of this Agreement is the date which is the earlier of (a) User’s initial access to the Service through any online provisioning, registration or order process or (b) the effective date of the first Order. This Agreement will govern User’s initial purchase on the Effective Date as well as any future purchases made by User that reference this Agreement. Miradi may modify this Agreement from time to time as permitted in Section 15 (Modifications to Agreement). Purchase from Reseller: If User purchases the Service from an authorized reseller of Miradi (“Reseller”), User’s use of the Service will be governed by this Agreement, subject to Section 16.14 (Reseller Orders) below. By indicating your acceptance of this Agreement or accessing or using the Service, you are agreeing to be bound by the terms and conditions of this Agreement. Each party expressly agrees that this Agreement is legally binding upon it.
1. Overview
Miradi offers a unique online Service for project management that is designed to support conservation practitioners and teams in the practice of good, evidence-based conservation from the project to the program scale. User maintains sole control over the types and content of all User Content it submits to the Service.
2. The Service
2.1 License
User may use the Service subject to the terms of this Agreement. The Miradi source code is available on request and is licensed under the GNU Affero General Public License v. 3 (“GNU Affero License”). Certain software that is bundled with the Service, the Keystone Identity Management Service, is proprietary to ESA Sitka and is licensed pursuant to the Keystone License Agreement.
2.2 Permitted Use
During the Subscription Term, User may access and use the Service only for its internal business or personal purposes in accordance with this Agreement, including any usage limits in an Order.
2.3 Data Limitations
For paid Team Miradi subscriptions, the fee for this Agreement permits User to create a limited number of shared-for-editing projects as specified in the Service Order (“Order”), or that add up to 5 GB of data storage, whichever is smaller.
2.4 Application Availability
The Service application will generally be available for use 24 hours a day, seven days a week, except during scheduled downtime. Application downtime for routine maintenance, software patches, and application releases will be scheduled in advance and published on the Miradi site. Industry standard precautions are undertaken to ensure redundancy in critical networking and server systems in order to minimize the likelihood of unplanned outages. Unplanned outages are rare and when they do occur, receive priority attention until they are resolved.
2.5 Identity Management
The Service uses the Keystone Identity Management Service from ESA Sitka for account provisioning, management, and web single sign-on. Single sign-on allows users to access related applications using one logon name and password, eliminating the need for users to manage multiple accounts. Keystone supports users requesting an account (i.e., registering) and users who forgot their passwords.
2.6 Users
Users may only use the Service commensurate with the uses allowed by their subscription type. Users who have a Miradi account must keep their login credentials confidential and not share them with anyone else. Team subscribers are responsible for their Users’ compliance with this Agreement and actions taken through their accounts (excluding misuse of accounts caused by Miradi’s breach of this Agreement). Team subscriber will promptly notify Miradi if it becomes aware of any compromise of its User login credentials. Miradi uses User account information as described in its Privacy Policy.
2.7 Administrators
Team subscribers may designate a User as an administrator with control over Service account, including management of Users and User Content. Team subscriber is fully responsible for its choice of administrators and any actions they take.
2.8 User Affiliates
User’s Affiliates may use the Service provided by User’s subscription. Alternatively, an Affiliate of User may enter its own Order(s) as mutually agreed with Miradi, and this creates a separate agreement between the Affiliate and Miradi that incorporates this Agreement with the Affiliate treated as “User.” Neither User nor any User Affiliate has any rights under each other’s agreement with Miradi, and breach or termination of any such agreement is not breach nor termination under any other.
2.9 Registration Using Organizational Email
If you created an account using an email address belonging to your employer or other entity, you represent and warrant that you have authority to create an account on behalf of such entity and further acknowledge that Miradi may share your email address with and control of your account may be taken over by such entity (as the “User”). Upon such takeover, the administrator controlling the account may be able to (i) access, disclose, restrict or remove information from the account, (ii) restrict or terminate your access to the Service and (iii) prevent you from later disassociating such account from the User.
2.10 Access to Third Party Projects and Programs
If you are invited to another User’s Project or Program, you acknowledge that your access to that Project or Program as well as any content you submit will be under the sole control of that other User.
2.11 Sharing Settings
Through the Service you control who you share Miradi content with (including making Projects and Programs public). Miradi has no liability for how others may access or use User Content as a result of your or your Users’ decision to share a Project or Program.
2.12 Restrictions
User will not (and will not permit anyone else to) do any of the following: (a) distribute, sell or sublicense the Service to a third party unless explicitly authorized in writing by FOS to do so, (b) use the Service to develop a similar or competing product or service outside the terms of the GNU Affero License, (c) modify or create derivative works of the Service or copy any element of the Service outside the terms of the GNU Affero License, (d) remove or obscure any proprietary notices in the Service or otherwise misrepresent the source of ownership of the Service, (e) publish benchmarks or performance information about the Service, (f) interfere with the Service’s operation, circumvent its access restrictions or conduct any security or vulnerability test of the Service, (g) transmit any viruses or other harmful materials to the Service, (f) engage in any fraudulent, misleading, illegal or unethical activities related to the Service or (h) use the Service to store or transmit material which contains illegal content.
3. Support and Service Level
3.1 Active Monitoring
The Miradi application, networking and server systems are actively monitored for availability and performance 24 hours a day, seven days a week, both from within our internal network and from the outside. Hundreds of endpoints are monitored every minute by our operations team using modern tools. Each monitored resource has configured warning and error thresholds, which helps our team spot and correct potential problems before they affect service.
Miradi is instrumented to generate time-synchronized log entries that can be routed to a variety of locations for analysis, archival and problem resolution. Errors marked as critical by the application are routed immediately to support personnel who begin investigating the issue and escalate to application engineers if necessary.
Miradi will respond to critical issues uncovered by our active monitoring within one business day of notification. “Critical issues” are generally defined as those that interrupt operations.
3.2 Backup and Recovery
Miradi database and system backups are scheduled to guard against gaps in business continuity due to hardware failures, operator errors, malfeasance, and disasters. The Miradi hosting environment ensures that nightly database and content backups are migrated to a secure offsite location to protect against data loss in the event of a natural disaster or other catastrophic site failure.
In addition to offsite storage, near-line storage provides up to 30 days of backup history to protect against inadvertent or intentional loss or corruption of critical data by users. In the event of a disaster under this scenario, critical business data will be preserved, but recovery time for the application could take several days and would be billed on a time & materials basis.
3.3 Support
Basic Miradi support is available through the in-application Resources and Support menus. Additional support can be arranged through a separate agreement.
3.4 Service Levels and Credits
Service Levels. Subject to the terms and conditions of this Agreement, Provider will use commercially reasonable efforts to make the Services Available at least 99.9% of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described in Section 2.4 (Application Availability). “Service Level Failure” means a material failure of the Services to meet the Application Availability requirement. “Available” means the Services are available for access and use by Customer and its Authorized Users over the Internet and operating in material accordance with the Specifications.
Exceptions. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement. The Services will not be considered un-Available and no Service Level Failure be deemed to occur in the event of any of the following: (a) access to or use of the Services by Customer or any Authorized User that does not strictly comply with this Agreement; (b) Customer’s or its Authorized User’s impaired Internet connectivity; (d) any Force Majeure Event; (e) any failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Provider pursuant to this Agreement; (f) Scheduled Downtime (defined below); or (g) disabling, suspension or termination of the Service.
Service Level Failures and Remedies. In the event of a Service Level Failure, Provider shall issue a credit to Customer of a portion of the monthly Fees for the Services due for the Service Period the Service Level Failure occurred (each a “Service Credit”), subject to the following:
- Provider has no obligation to issue any Service Credit unless (i) Customer reports the Service Failure to Provider within three days after becoming aware of it; and (ii) requests such Service Credit in writing within 15 days of the Service Level Failure; and
- in no event will a Service Level Credit for any Service Period exceed 30% of the total Fees that would be payable for that Service Period if no Service Level Failure had occurred.
Any Service Credit payable to Customer under this Agreement will be issued to Customer in the calendar month following the Service Period in which the Service Level Failure occurred, unless the Service Period is the final Service Period of the Agreement, in which case the Provider will issue a refund for the Service Credit amount within 30 days. This Section 3.4 sets forth Provider’s sole obligation and liability and Customer’s sole remedy for any Service Level Failure.
Service Credit Calculation. The Service Credit will be calculated as a percentage of the total Services charges for affected Services during the Service Period.
Service Availability Credit Percentage
99.90% - 100% 0%
98.00% - 99.89% 10%
97.00% - 97.99 20%
Below 97% 30%
Scheduled Downtime. Provider will: (a) schedule downtime for routine maintenance of the Services on Wednesdays between the hours of 8 p.m. and 10 p.m., Pacific Time; and (b) give Customer at least 24 hours prior notice of all scheduled outages of the Services (“Scheduled Downtime”).
4. User Content
4.1 Data Use
User grants Miradi the non-exclusive, worldwide right to use, copy, store, transmit and display User Content and to modify and create derivative works of User Content (for reformatting or other technical purposes), but only as necessary to provide the Service, Support and any Technical Services to User under this Agreement.
4.2 Personal Data
Each party agrees to comply with the DPA.
4.3 Data Export
During the Subscription Term or within one year thereafter, User may export its User Content from the Service using the export features included in the Service. After this export period, Miradi may delete User Content in accordance with its standard schedule and procedures. All associated User Content will be deleted permanently and cannot be retrieved.
5. User Obligations
5.1 Generally
User is responsible for its User Content, including its content and accuracy, and agrees to comply with Laws in using the Service. User represents and warrants that it has made all disclosures and has all rights, consents and permissions necessary to use its User Content with the Service and grant Miradi the rights in Section 4.1 (Data Use), all without violating or infringing Laws, third-party rights (including intellectual property, publicity or privacy rights) or any terms or privacy policies that apply to the User Content. User is responsible, at its own expense, for acquiring, installing and maintaining all necessary connectivity equipment, hardware, software and other equipment as may be necessary to connect to, access, and use the Service.
5.2 Prohibited Uses
User must not use the Service with Prohibited Data or for High Risk Activities. User acknowledges that the Service is not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Miradi is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, Miradi has no liability for Prohibited Data or use of the Service for High Risk Activities.
5.3 Individual User Account Takeover
The Service may contain functionality allowing User to convert accounts previously registered by individuals using email addresses from User’s domain into User accounts under User’s control. User represents and warrants that it has all necessary rights and consents to the extent it converts any existing accounts registered using email addresses from User’s domain into accounts underUser’s control.
5.4 Suspension of Service
Miradi may suspend User’s access to and use of the Service is revocable by Miradi without warning if in Miradi’s sole judgment, the user has a) materially breached any term of this license, b) failed to remit payments per the sales agreement, c) in any way is using the service in a manner that diminishes the rights of other licensees, or d) uses the service in a manner that is or appears to be in violation of applicable law, or d) is ordered to do so by a Court of competent jurisdiction. Once User resolves the issue requiring suspension, Miradi will promptly restore User’s access to the Service in accordance with this Agreement.
5.5 Third-Party Platforms
User may choose to use the Service with Third-Party Platforms. Use of Third-Party Platforms is subject to User’s agreement with the relevant provider and not this Agreement. Miradi does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability or interoperability or how the Third-Party Platforms or their providers use User Content. If User enables a Third-Party Platform with the Service, Miradi may access and exchange User Content with the Third-Party Platform on User’s behalf.
5.6 Technical Services
Any purchased Technical Services are as described in the relevant Order. User will give Miradi timely access to User Materials reasonably needed for the Technical Services, and if User fails to do so, Miradi’s obligation to provide Technical Services will be excused until access is provided. Miradi will use User Materials only for purposes of providing Technical Services. Any Technical Services deliverables relate to the configuration or use of the Service. User may use Technical Services deliverables only as part of its authorized use of the Service, subject to the same terms as for the Service in Section 2 (The Service) and Section 5 (User Obligations).
6. Commercial Terms
6.1 Subscription Term
Unless otherwise specified in the applicable Order, each Subscription Term will automatically renew for successive 12-month periods, unless either party gives the other party notice of non-renewal prior to the Subscription Term end date. Upon notice of non-renewal, User will not be charged for the next billing cycle but will not receive any refunds or credits for amounts that have already been charged. Upon termination of a paid subscription, the User’s account will be suspended and all User content will become view-only until the subscription is made current. After a non-renewal period of one year, Miradi may delete User Content in accordance with its standard schedule and procedures.
6.2 Fees and Taxes
Fees are as described in each Order. Fees are invoiced on the schedule in the Order. User agrees that Miradi may bill User’s credit card or other payment method for renewals and any other unpaid fees, as applicable. User may change its payment method information by contacting Miradi Subscription Support. Unless the Order provides otherwise, all fees and expenses are due within 30 days of the billing date specified in the applicable Order. Fees for renewal Subscription Terms are at Miradi’s then-current rates, regardless of any discounted pricing in a prior Order. All fees and expenses are non-refundable except as set out in Section 3 (Support and Service Level), Section 7.2 (Warranty Remedy) and Section 11.4 (Mitigation and Exceptions). User is responsible for any sales, use, goods and services, value-added, withholding or similar taxes or levies that apply to its Orders, whether domestic or foreign (“Taxes”), other than Miradi’s income tax. Fees and expenses are exclusive of Taxes.
7. Warranties and Disclaimers
7.1 Limited Warranty
Miradi warrants to User that: (a) Miradi will generally maintain or improve the overall functionality of the Service during a Subscription Term (the “Performance Warranty”) and (b) Miradi will perform any Technical Services in a professional and workmanlike manner (the “Technical Services Warranty”).
7.2 Warranty Remedy
If Miradi breaches Section 7.1 (Limited Warranty) and User makes a reasonably detailed warranty claim within 30 days of discovering the issue, then Miradi will use reasonable efforts to correct the non-conformity. If Miradi cannot do so within 60 days of User’s warranty claim, either party may terminate the affected Order as relates to the non-conforming Service or Technical Services. Miradi will then refund to User any pre-paid, unused fees for the terminated portion of the Subscription Term (for the Performance Warranty) or for the non-conforming Technical Services (for the Technical Services Warranty). These procedures are User’s exclusive remedy and Miradi’s entire liability for breach of the warranties in Section 7.1. These warranties do not apply to (a) issues caused by misuse or unauthorized modifications, (b) issues in or caused by Third-Party Platforms or other third-party systems or (c) Trials and Betas or other free or evaluation use.
7.3 Disclaimers
Except as expressly provided in Section 7.1 (Limited Warranty), the Service, Support, Technical Services and all related Miradi services are provided “AS IS”. Miradi and its suppliers make no other warranties, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular purpose, title or noninfringement. Without limiting its express obligations in Section 3 (Support and Service Level), Miradi does not warrant that User’s use of the Service will be uninterrupted or error-free or that the Service will meet User’s requirements, operate in combination with third-party services used by User or maintain User Content without loss. Miradi is not liable for delays, failures or problems inherent in use of the Internet and electronic communications or other systems outside Miradi’s control. User may have other statutory rights, but any statutorily required warranties will be limited to the shortest legally permitted period.
8. Term and Termination
8.1 Term
This Agreement starts on the Effective Date and continues until 90 days after expiration or termination of all Subscription Terms.
8.2 Termination for Cause
Either party may terminate this Agreement (including all Orders) if the other party (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice, (b) ceases operation without a successor or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.
8.3 Termination for Convenience
Either party may terminate this Agreement (including all Orders) at any time for any reason upon 90 days’ notice to the other party, provided (i) User will not be entitled to a refund of any pre-paid fees and (ii) if User has not already paid all applicable fees for the then-current Subscription Term, any such fees that are outstanding will become immediately due and payable.
8.4 Effect of Termination
Upon expiration or termination of this Agreement or an Order, User’s access to the Service and Technical Services will revert to the level of service provided under a Free subscription and use of the Service to export User Content as described in Section 4.3 (Data Export). At the disclosing party’s request upon expiration or termination of this Agreement, the receiving party will delete all of the disclosing party’s Confidential Information (excluding User Content, which is addressed in Section 4). User Content and other Confidential Information may be retained in the receiving party’s standard backups after deletion but will remain subject to this Agreement’s confidentiality restrictions.
8.5 Survival
These Sections survive expiration or termination of this Agreement: 2.12 (Restrictions), 4.3 (Data Export), 5 (User Obligations), 6.2 (Fees and Taxes), 7.3 (Disclaimers), 8.4 (Effect of Termination), 8.5 (Survival), 9 (Ownership), 10 (Limitations of Liability), 11 (Indemnification), 12 (Confidentiality), 16 (General Terms) and 17 (Definitions). Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
9. Ownership
Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Miradi’s use rights in this Agreement, between the parties User retains all intellectual property and other rights in User Content and User Materials provided to Miradi. Except for User’s use rights in this Agreement, Miradi and its licensors retain all intellectual property and other rights in the Service, any Technical Services deliverables and related Miradi technology, templates, formats and dashboards, including any modifications or improvements to these items made by Miradi. Miradi may generate and use Usage Data to operate, improve, analyze and support the Service and for other lawful business purposes. If User provides Miradi with feedback or suggestions regarding the Service or other Miradi offerings, Miradi may use the feedback or suggestions without restriction or obligation.
10. Limitations of Liability
10.1 Consequential Damages Waiver
The disclaimer in this Section 10.1 (Consequential Damages Waiver) will not apply to the extent prohibited by Laws. Except for Excluded Claims, neither party (nor its suppliers) will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, revenues, goodwill, interruption of business or any indirect, special, incidental, reliance or consequential damages of any kind, even if informed of their possibility in advance.
10.2 Liability Cap
Except for Excluded Claims, each party’s (and its suppliers’) entire liability arising out of or related to this Agreement will not exceed in aggregate the amounts paid or payable by User to Miradi during the prior 12 months under this Agreement.
10.3 Excluded Claims
“Excluded Claims” means: (a) User’s breach of Sections 2.12 (Restrictions) or 5 (User Obligations), (b) either party’s breach of Section 12 (Confidentiality) (but excluding claims relating to User Content), (c) amounts payable to third parties under User’s obligations in Section 11.2 (Indemnification by User), (d) either party’s willful misconduct or (e) Miradi’s performance of the Service that results in death, personal injury or damage to tangible property.
10.4 Nature of Claims and Failure of Essential Purpose
The waivers and limitations in this Section apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
11. Indemnification
11.1 Indemnification by Miradi
Miradi will defend User from and against any third-party claim to the extent alleging that the Service, when used by User as authorized in this Agreement, infringes a third party’s patent, copyright, trademark or trade secret, and will indemnify and hold harmless User against any damages or costs awarded against User (including reasonable attorneys’ fees) or agreed in settlement by Miradi resulting from the claim.
11.2 Indemnification by User
User will defend Miradi from and against any third-party claim to the extent resulting from User Content, User Materials or User’s breach or alleged breach of Section 5 (User Obligations), and will indemnify and hold harmless Miradi against any damages or costs awarded against Miradi (including reasonable attorneys’ fees) or agreed in settlement by User resulting from the claim.
11.3 Procedures
The indemnifying party’s obligations in this Section are subject to receiving (a) prompt notice of the claim, (b) the exclusive right to control and direct the investigation, defense and settlement of the claim and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Service, when Miradi is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.
11.4 Mitigation and Exceptions
In response to an actual or potential infringement claim, if required by settlement or injunction or as Miradi determines necessary to avoid material liability, Miradi may at its option: (a) procure rights for User’s continued use of the Service, (b) replace or modify the allegedly infringing portion of the Service to avoid infringement without reducing the Service’s overall functionality or (c) terminate the affected Order and refund to User any pre-paid, unused fees for the terminated portion of the Subscription Term. Miradi’s obligations in this Section do not apply (1) to the extent infringement results from User’s modification of the Service or use of the Service in combination with items not provided by Miradi (including Third-Party Platforms), (2) to infringement resulting from Software other than the most recent release provided by Miradi, (3) to unauthorized use of the Service, (4) if User settles or makes any admissions about a claim without Miradi’s prior consent, (5) if User continues to use the Service (or any element thereof) after being notified of allegedly infringing activity or informed of modifications that would have avoided the alleged infringement or (6) to Trials and Betas or other free or evaluation use. This Section 11 sets out User’s exclusive remedy and Miradi’s entire liability regarding infringement of third-party intellectual property rights.
12. Confidentiality
12.1 Definition
“Confidential Information” means information disclosed to the receiving party under this Agreement that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Miradi’s Confidential Information includes any technical or performance information about the Service. User’s Confidential Information includes User Content.
12.2 Obligations
As receiving party, each party will (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 4.1 (Data Use), and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Miradi, the subcontractors referenced in Section 16.9), provided it remains responsible for their compliance with this Section 12 and they are bound to confidentiality obligations no less protective than this Section 12.
12.3 Exclusions
These confidentiality obligations do not apply to information that the receiving party can document (a) is or becomes public knowledge through no fault of the receiving party, (b) it rightfully knew or possessed prior to receipt under this Agreement, (c) it rightfully received from a third party without breach of confidentiality obligations or (d) it independently developed without using the disclosing party’s Confidential Information.
12.4 Remedies
Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 12.
12.5 Required Disclosures
Nothing in this Agreement prohibits either party from making disclosures, including of User Content and other Confidential Information, if required by Law, subpoena or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.
13. Trials and Betas
If User receives access to the Service or Service features on a free or trial basis or as an alpha, beta or early access offering (“Trials and Betas”), use is permitted only for User’s internal evaluation during the period designated by Miradi (or if not designated, 60 days). Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete or include features that Miradi may never release, and their features and performance information are Miradi’s Confidential Information. Notwithstanding anything else in this Agreement, Miradi provides Trials and Betas “AS IS” with no warranty, indemnity or support and its liability for Trials and Betas will not exceed US$50.
14. Publicity
Neither party may publicly announce this Agreement except with the other party’s prior consent or as required by Laws. However, Miradi may include User and its trademarks in Miradi’s user lists and promotional materials but will cease this use at User’s written request.
15. Modifications to Agreement
Miradi may modify this Agreement (which may include changes to Service pricing and plans) annually by giving notice to User by email or through the Service at least 60 days prior to each renewal term. Unless a shorter period is specified by Miradi (e.g., due to changes in the Law or exigent circumstances), modifications become effective upon renewal of User’s current Subscription Term or entry into a new Order. If Miradi specifies that the modifications to the Agreement will take effect prior to User’s next renewal or Order and User notifies Miradi of its objection to the modifications within 30 days after the date of such notice, Miradi (at its option and as User’s exclusive remedy) will either: (a) permit User to continue under the existing version of this Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will go into effect) or (b) allow User to terminate this Agreement and receive a refund of any pre-paid Service fees allocable to the terminated portion of the applicable Subscription Term. User may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Service, and, in any event, continued use of the Service after the updated version of this Agreement goes into effect will constitute User’s acceptance of such updated version.
16. General Terms
16.1 Assignment
Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
16.2 Governing Law, Jurisdiction and Venue
This Agreement is governed by the laws of the State of Maryland and the United States without regard to conflicts of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in Maryland and both parties submit to the personal jurisdiction of those courts.
16.3 Attorneys’ Fees and Costs
The prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs in connection with such action.
16.4 Notices
Except as set out in this Agreement, any notice or consent under this Agreement must be in writing and will be deemed given: (a) upon receipt if by personal delivery, (b) upon receipt if by certified or registered U.S. mail (return receipt requested) or (c) one day after dispatch if by a commercial overnight delivery service. If to Miradi, notice must be provided to Foundations of Success, Inc. doing business as Miradi, 4109 Maryland Ave, Bethesda MD 20816, USA. All notices to Miradi must include a copy emailed to info@Miradi.org. If to User, Miradi may provide notice to the address User provided at registration. Either party may update its address with notice to the other party. Miradi may also send operational notices to User by email or through the Service.
16.5 Entire Agreement
This Agreement (which includes all Orders, the Policies and the DPA) is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.
16.6 Amendments
Except as otherwise provided herein, any amendments, modifications or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by Miradi. Nonetheless, with notice to User, Miradi may modify the Policies to reflect new features or changing practices, but the modifications will not materially decrease Miradi’s overall obligations during a Subscription Term. The terms in any past, contemporaneous or future User purchase order, business form or vendor management portal will not amend or modify this Agreement and are expressly rejected by Miradi; any of these documents are for administrative purposes only and have no legal effect.
16.7 Waivers and Severability
Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.
16.8 Force Majeure
Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license or natural disaster.
16.9 Subcontractors
Miradi may use subcontractors and permit them to exercise Miradi’s rights, but Miradi remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
16.10 Independent Contractors
The parties are independent contractors, not agents, partners or joint venturers.
16.11 Export
User agrees to comply with all relevant U.S. and foreign export and import Laws in using the Service. User (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) agrees not to access or use the Service in violation of any U.S. export embargo, prohibition or restriction and (c) will not submit to the Service any information controlled under the U.S. International Traffic in Arms Regulations.
16.12 Open Source
The Software may incorporate third-party open source software (“OSS”) as disclosed by Miradi upon request. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.
16.13 Government End-Users
Elements of the Service are commercial computer software. If the user or licensee of the Service is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Service was developed fully at private expense. All other use is prohibited.
16.14 Reseller Orders
This Section applies to any access to the Service purchased by User through a Reseller. (a) Commercial Terms. Instead of paying Miradi, User will pay applicable amounts to the Reseller as agreed between User and the Reseller. User’s order details (e.g., scope of use and fees) will be as stated in the Order placed by the Reseller with Miradi on User’s behalf. The Reseller is responsible for the accuracy of such Order. Miradi may suspend or terminate User’s rights to use the Service if it does not receive the corresponding payment from the Reseller. If User is entitled to a refund under this Agreement, Miradi will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to User, unless otherwise specified. (b) Relationship with Miradi. This Agreement is directly between Miradi and User and governs all use of the Service by User. Resellers are not authorized to modify this Agreement or make any promises or commitments on Miradi’s behalf, and Miradi is not bound by any obligations to User other than as set forth in this Agreement. Miradi is not party to (or responsible under) any separate agreement between User and Reseller and is not responsible for the Reseller’s acts, omissions, products or services. The amount paid or payable by the Reseller to Miradi for User’s use of the applicable Service under this Agreement will be deemed the amount paid or payable by User to Miradi under this Agreement for purposes of Section 10 (Limitations of Liability).
16.15 Insurance
During the Subscription Term, Miradi will carry industry standard commercial insurance.
17. Definitions
“DPA” means the Data Processing Addendum between the parties, the current version of which is here.
“High Risk Activities” means activities where use or failure of the Service could lead to death, personal injury or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles or air traffic control.
“Laws” means all relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and export of technical or personal data.
“Order” means any Miradi-provided ordering document, online registration, order description or order confirmation referencing this Agreement.
“Policies” means the Privacy Policy
“Privacy Policy” means the Privacy Policy, the current version of which is here.
“Prohibited Data” means any (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation, (b) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”), (c) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (PCI DSS), (d) other information subject to regulation or protection under specific Laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations), (e) social security numbers, driver’s license numbers or other government ID numbers or (f) any data similar to the above protected under foreign or domestic Laws.
“Project” means an online data set or other element of the Service displaying User Content.
“Program” means a space in Miradi for managing multiple related projects. Programs provide additional functionality, beyond that available for standalone Projects.
“Service” means Miradi’s proprietary cloud service, as identified in the relevant Order and as modified from time to time. The Service includes the Software and does not include Technical Services deliverables or Third-Party Platforms.
“Software” means any Miradi client software, scripts, apps or other code provided to User by Miradi for use with the Service.
“Subscription Term” means the term for User’s use of the Service as identified in an Order.
“Support” means support for the Service as described in Section 3. Additional User Support will be identified in User’s Order.
“Technical Services” means any training, enablement or other technical services provided by Miradi related to the Service, as identified in an Order.
“Third-Party Platform” means any platform, add-on, service, product, app or integration not provided by Miradi that User elects to integrate or enable for use with the Service.
“Usage Data” means Miradi’s technical logs, data and learnings about User’s use of the Service, but excluding User Content.
“User” means any individual that User or its Affiliate permits or invites to use the Service.
“User Content” means any data, content or materials that User (including its Users) creates within or submits to the Service, including from Third-Party Platforms.
“User Materials” means materials, systems and other resources that User provides to Miradi in connection with Technical Services.
For Questions or More Information
Contact info@miradi.org
Note that the text of this document has been adapted from a similar document developed by Miro Software.
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