Medial EarlySign – Terms and Conditions

These terms and conditions (“Agreement”) is between you (“you” or “Customer”) and Medial EarlySign Ltd. (“Publisher”) from which you are procuring Offerings (defined below) and governs your use of Offerings purchased through Azure Marketplace and AppSource Marketplace (collectively, “Marketplace”). 

This Agreement is the parties’ entire agreement on this subject and merges and supersedes all related prior and contemporaneous agreements. By agreeing to these terms, you represent and warrant that you have the authority to accept this Agreement, and you also agree to be bound by its terms. This Agreement applies to all Orders entered into under this Agreement. Capitalized terms have the meanings given under “Definitions.”
 
1.	License to Offerings 
1.1.	License grant. Offerings are licensed and not sold. Upon Publisher’s acceptance of an Order, and subject to Customer’s compliance with this Agreement, Publisher grants Customer a nonexclusive and limited license to use the ordered Offerings in accordance with this Agreement and the Documentation. These licenses are solely for Customer’s own use and business purposes and are nontransferable except as expressly permitted under this Agreement or applicable law. 
1.2.	Duration of license. The License granted pursuant to this Agreement is given on a subscription basis and expires at the end of the applicable subscription period set forth in the Order, unless renewed.
1.3.	End Users. Customer will control access to and use of the Offerings by End Users and is responsible for any use of the Offerings that does not comply with this Agreement. 
1.4.	Reservation of Rights. Publisher reserves all rights not expressly granted in this Agreement. Offerings are protected by copyright and other intellectual property laws and international treaties. No rights will be granted or implied by waiver or estoppel. Rights to access or use Offerings on a device do not give Customer any right to implement Publisher’s patents or other intellectual property in the device itself or in any other software or devices. 
1.5.	Restrictions. Except as expressly permitted in this Agreement, Documentation or an Order, Customer must not (and is not licensed to): 
1.5.1.	copy, modify, reverse engineer, decompile, or disassemble any Offering, or attempt to do so; 
1.5.2.	install or use any third-party software or technology in any way that would subject Publisher’s intellectual property or technology to any other license terms; 
1.5.3.	work around any technical limitations in an Offering or restrictions in Documentation; 
1.5.4.	separate and run parts of an Offering on more than one device; 
1.5.5.	upgrade or downgrade parts of an Offering at different times; 
1.5.6.	use an Offering for any unlawful purpose; 
1.5.7.	transfer parts of an Offering separately; or 
1.5.8.	distribute, sublicense, rent, lease, or lend any Offerings, in whole or in part. 
1.6.	License transfers. Customer may not transfer the license granted to him pursuant to this Agreement to any third party, without the Publisher’s prior written consent. Attempted license transfers that do not comply with this section are void. 
1.7.	Feedback. Any Feedback by the Customer is given voluntarily, and the Publisher shall have an exclusive right to make, use, modify, distribute, and commercialize the Feedback as part of any of Publisher’s products and services, in whole or in part. All other rights in any Feedback shall be owned by the Publisher.
2.	Privacy.
2.1.	EU Standard Contractual Clauses. To the extent applicable, the Customer will abide by the requirements of European Economic Area and Swiss data protection law regarding the collection, use, transfer, retention, and other processing of Personal Data from the European Economic Area and Switzerland. All transfers of Customer Data out of the European Union, European Economic Area, and Switzerland will be governed by the Standard Contractual Clauses, as designated by the European Commission. 
2.2.	Personal Data. Customer acknowledges that the proper use of the Offering, does not require Publisher to be provided with or to process individually identifiable Protected Health Information (as is defined under the Health Insurance Portability and Accountability Act of 1996) or comparable information under the law of any other jurisdiction (collectively, “PHI”). Customer undertakes to use only de-identified data in conjunction with the Offering and not to provide the Publisher with and/or use in conjunction with any Offering, any PHI. In the event Publisher will agree to receive and/or process any PHI, Customer shall obtain all required consents from third parties (including Customer’s contacts, partners, distributors, administrators, and employees) under applicable privacy and Data Protection Laws.   

3.	Confidentiality. 
3.1.	Confidential Information. “Confidential Information” shall mean any confidential or proprietary information of a party hereto (together with any parent company, subsidiary and affiliate, if applicable, the "Disclosing Party") disclosed to the other party hereto (together with its parent company, subsidiaries and affiliates, if applicable, the "Receiving Party"), whether orally or in writing, whether or not expressly designated to show that it is confidential or proprietary, including: (i) the terms and conditions of this Agreement; (ii) the Disclosing Party's business and marketing plans, technology and financial, commercial or technical information, product designs, and business processes; (iii) any information or materials with the name, sign, trade name or trademark of the Disclosing Party; (iv) the identities and other related information of the Disclosing Party's clients, prospective clients, strategic partners, shareholders, employees, officers, consultants, advisors and suppliers; (v) information or data which is confidential or proprietary to a third party and which is in the possession, custody or control of the Disclosing Party; (vi) all data, notes, summaries or other material derived from the information specified above, whether contained in documents or other media, whether prepared by the Receiving Party or otherwise; and (vii) any information that a reasonable person would deem confidential or proprietary given the nature of the information and the circumstances under which it is disclosed. Confidential Information shall not, however, include any information which the Receiving Party can establish by written documentation that such information: (a) was publicly known and made generally available in the public domain prior to the time of disclosure to the Receiving Party by the Disclosing Party; (b) became publicly known and made generally available after disclosure to the Receiving Party by the Disclosing Party through no action or inaction of the Receiving Party or anyone on its behalf; (c) was in the possession of the Receiving Party, without confidentiality restrictions, at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files and records immediately prior to the time of disclosure; or (d) is independently developed by the Receiving Party without access to the disclosing party's Confidential Information. 
3.2.	Protection of Confidential Information. Each party will take reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship. Neither party will disclose Confidential Information to third parties, except to its Representatives, and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of Confidential Information by its Representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party. 
3.3.	Disclosure required by law. A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order. 
3.4.	Duration of Confidentiality obligation. These obligations apply: (1) for Customer Data, until it is deleted by Publisher; and (2) for all other Confidential Information, indefinitely. 
4.	SLAs. 

Publisher may offer further availability and support obligations for an Offering. Such service level agreement (“SLA”) will be made available by the Publisher at the applicable URL for such SLA or as otherwise communicated to Customer. 

5.	Verifying compliance. 
Customer must keep records relating to Offerings it uses. At Publisher’s expense, Publisher may verify Customer’s and its Affiliates’ compliance with this Agreement at any time upon 30 days’ notice. To do so, Publisher may engage an independent auditor (under nondisclosure obligations) or ask Customer to complete a self-audit process. Customer must promptly provide any information and documents that Publisher or the auditor reasonably requests related to the verification and access to systems running the Offerings. If verification or self-audit reveals any unlicensed use, Customer must, within 30 days, order sufficient licenses to cover the period of its unlicensed use. Without limiting Publisher’s other remedies, if unlicensed use is 5% or more of Customer’s total use of all Offerings, Customer must reimburse Publisher for its costs incurred in verification and acquire sufficient licenses to cover its unlicensed use at 125% of the then-current Customer price or the maximum allowed under applicable law, if less. All information and reports related to the verification process will be Confidential Information and used solely to verify compliance.

6.	Representation and warranties. 
6.1.	Publisher continuously represents and warrants that: 
6.1.1.	it has full rights and authority to enter into, perform under, and grant the rights in, this Agreement; 
6.1.2.	its performance will not violate any agreement or obligation between it and any third party; 
6.1.3.	the Offering will substantially conform to the Documentation; 
6.1.4.	the Offering will not: 
6.1.4.1.	to the best of Publisher’s knowledge, infringe or violate any third party patent, copyright, trademark, trade secret, or other proprietary right; or 
6.1.4.2.	contain viruses or other malicious code that will degrade or infect any products, services, software, or Customer’s network or systems, and 
6.1.5.	while performing under this Agreement, Publisher will comply with law, including Data Protection Laws and Anti-Corruption Laws, and will provide training to its employees regarding Anti-Corruption Laws. 
6.2.	DISCLAIMER. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE OFFERING IS PROVIDED AS IS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PUBLISHER DISCLAIMS ANY AND ALL OTHER WARRANTIES (EXPRESS, IMPLIED OR STATUTORY, OR OTHERWISE) INCLUDING OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY A COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR COURSE OF PERFORMANCE. WITHOUT DEROGATING FROM THE FOREGOING, CUSTOMER ACKNOWLEDGES THAT THE OFFERINGS ARE NOT MEDICAL DEVICES AND THE RESULTS GENERATED BY THEM DO NOT CONSTITUTE, AND ARE NOT MEANT TO REPLACE, MEDICAL ADVICE BY A LICENSED PHYSICIAN.
6.3.	Customer continuously represents and warrants that: 
6.3.1.	it has full rights and authority to enter into, perform under, and use the rights in, this Agreement; 
6.3.2.	its performance will not violate any agreement or obligation between it and any third party; 
7.	Indemnification. 
7.1.	By Customer. Customer will defend Publisher and its Affiliates from and against any and all third party claims, actions, suits, proceedings arising from or related to Customer’s or any authorized user’s violation of this Agreement or user terms (a “Claims Against Publisher”), and will indemnify Publisher and its Affiliates for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Publisher or its Affiliates in connection with or as a result of, and for amounts paid by Publisher or its Affiliates under a settlement Customer approves of in connection with a Claim Against Publisher. Publisher must provide Customer with prompt written notice of any Claims Against Publishers and allow Customer the right to assume the exclusive defense and control of the claim, and cooperate with any reasonable requests assisting Customer’s defense and settlement of such matter. 
7.2.	By Publisher. Publisher will defend Customer from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of the Offering as permitted under the Contract infringes or misappropriates a third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Customer in connection with or as a result of, and for amounts paid by Customer under a settlement Publisher approve of in connection with a Claim Against Customer; provided, however, that the Publisher has no liability if a Claim Against Customer arises from: (1) Customer Data or non-Publisher products, including third-party software; and (2) any modification, combination or development of the Offering that is not performed or authorized in writing by Publisher, including in the use of any application programming interface (API). Customer must provide Publisher with prompt written notice of any Claim Against Customer and allow Publisher the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting Publisher’s defense and settlement of such matter. This section states Publisher sole liability with respect to, and Customer’s exclusive remedy against Publisher for, any Claim Against Customer. 
7.3.	Notwithstanding anything contained in the above subsections ‎7.1 and ‎7.2, (1) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (2) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if: (A) the third party asserting the claim is a government agency; (B) the settlement arguably involves the making of admissions by the indemnified parties; (C) the settlement does not include a full release of liability for the indemnified parties; or (D) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money. 

8.	Limitation of liability. 
8.1.	For each Offering, Publisher’s maximum, aggregate liability to the Customer under this Agreement is limited to direct damages finally awarded in an amount not to exceed the amounts Customer was required to pay for the Offerings during the 12 months before the incident. 
8.2.	Exclusions. In no event will either party be liable for indirect, incidental, special, punitive, or consequential damages, or loss of use, loss of profits, or interruption of business, however caused or on any theory of liability. 
8.3.	Exceptions. No limitation or exclusions will apply to liability arising out of either party’s: (1) confidentiality obligations (except for liability related to Customer Data, which will remain subject to the limitations and exclusions above); (2) fraud, willful misconduct or gross negligence; or (3) violation of the other party’s intellectual property rights. 
9.	Pricing and payment. 
Customer’s pricing and payment terms for a given order will be set forth and governed by the applicable Order.
 
10.	Term and termination. 
10.1.	Term. This Agreement is effective until terminated by a party, as described below. The term for each Order will be set forth therein. 
10.2.	Termination without cause. Unless otherwise set forth in an Order, either party may terminate this Agreement or any Order without cause on 60 days’ notice. 
10.3.	Termination for cause. Without limiting other remedies it may have, either party may terminate this Agreement or any Order immediately on notice if (i) the other party materially breaches the Agreement or an Order, and fails to cure the breach within 30 days after receipt of notice of the breach; or (ii) the other party becomes Insolvent. Upon such termination, the following will apply: 
10.3.1.	All licenses granted under this Agreement will terminate immediately. 
10.3.2.	All amounts due under any unpaid invoices will become due and payable immediately. 
10.4.	Suspension. Publisher may suspend use of the Offering without terminating this Agreement during any period of material breach. Publisher will give Customer reasonable notice before suspending the Offering. Suspension will only be to the extent reasonably necessary. 
10.5.	Survival. The terms of this Agreement, including the applicable Order, that are likely to require performance, or have application to events that may occur, after the termination or expiration of this Agreement or any Order, will survive termination or expiration, including all indemnity obligations and procedures. 
11.	Miscellaneous. 
11.1.	Entire Agreement. This Agreement supersedes all prior and contemporaneous communications, whether written or oral, regarding the subject matter covered in this Agreement. If there is a conflict between any parts of this Agreement, the following order of precedence will apply:
11.1.1.	Order; 
11.1.2.	this Agreement; 
11.1.3.	Service Level Agreement (SLA); and 
11.1.4.	Documentation. 
 	
11.2.	Independent contractors. The parties are independent contractors. Customer and Publisher each may develop products independently without using the other’s Confidential Information. 
11.3.	Agreement not exclusive. Customer is free to enter into agreements to license, use, and promote the services of others. 
11.4.	Amendments. Any term of this Agreement may be amended (either prospectively or retroactively) only with the written consent of all parties hereto. 
11.5.	Assignment. Customer may not assign this Agreement to any third party without the prior written consent of the Publisher. Publisher may assign this Agreement to an Affiliate, but it must notify the Customer in writing of the assignment. Customer consents to the assignment to an Affiliate or third party, without prior notice, of any rights Publisher may have under this Agreement to receive payment and enforce Customer's payment obligations, and all assignees may further assign such rights without further consent. Any attempted assignment without required approval will be void. 
11.6.	Severability. If any part of this Agreement is held to be unenforceable, the rest of the Agreement will remain in full force and effect. 
11.7.	Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party. 
11.8.	No third-party beneficiaries. This Agreement does not create any third-party beneficiary rights except as expressly provided by its terms. 
11.9.	Notices. Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to Publisher must be sent to the address stated in the Order. Notices to Customer will be sent to the individual at the address Customer identifies on its account as its contact for notices. Publisher may send notices and other information to Customer by email or other electronic form. 
11.10.	Applicable law. 
11.10.1.	United States and Canada. If you acquired the Offering in the United States or Canada, the laws of the state or province where you live (or, if a business, where your principal place of business is located) govern the interpretation of these terms, claims for breach of them, and all other claims (including consumer protection, unfair competition, and tort claims), regardless of conflict of law principles. 
11.10.2.	Outside the United States and Canada. If you acquired the Offering in any other country, the laws of that country apply. 
11.11.	Order of precedence. The body of this Agreement will take precedence over any conflicting terms in other documents that are part of this Agreement that are not expressly resolved in those documents. Terms in an amendment control over the amended document and any prior mendments concerning the same subject matter. 
11.12.	Compliance with laws. Both parties will comply with all laws and regulations applicable to their performance of their obligations and the utilization of their rights hereunder. Either party will be responsible to obtain and maintain any approvals, licenses, filings, or registrations necessary to its performance, and will comply with all law (including law related to export, corruption, money laundering, or any combination of these).
12.	Construction. Neither party has entered this Agreement in reliance on anything not contained or incorporated in it. This Agreement is in English only. Any translation of this Agreement into another language is for reference only and without legal effect. If a court of competent jurisdiction finds any term of the Agreement unenforceable, the Agreement will be deemed modified as necessary to make it enforceable, and the rest of the Agreement will be fully enforced to effect the parties’ intent. Lists of examples following “including”, “e.g.”, “for example”, or the like are interpreted to include “without limitation,” unless qualified by words such as “only” or “solely.” This Agreement will be interpreted according to its plain meaning without presuming that it should favor either party. 
13.	Definitions. 
13.1.	“Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party. 
13.2.	“Anti-Corruption Laws” means all laws against fraud, bribery, corruption, inaccurate books and records, inadequate internal controls, money-laundering, and illegal software, including the U.S. Foreign Corrupt Practices Act. 
13.3.	“Control” means ownership of more than a 50% interest of voting securities in an entity or the power to direct the management and policies of an entity. 
13.4.	“Confidential Information” is defined in the “Confidentiality” section. 
13.5.	“Customer Data” means all data, including all text, sound, software, image or video files that are provided to Publisher or its Affiliates by, or on behalf of, Customer and its Affiliates through use of the Offering. Customer Data does not include Support Data. “Support Data” means all data, including all text, sound, video, image files, or software, that are provided to Publisher by or on behalf of Customer (or that Customer authorizes Publisher to obtain from an Offering) through an engagement with Publisher to obtain technical support for the Offering covered under this Agreement. 
13.6.	“Data Protection Law” means any law applicable to Publisher or Customer, relating to data security, data protection and/or privacy, including Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to processing of personal data and the free movement of that data (“GDPR”), and any implementing, derivative or related legislation, rule, regulation, and regulatory guidance, as amended, extended, repealed and replaced, or re-enacted. 
13.7.	“Documentation” means all user manuals, handbooks, training material, requirements, and other written or electronic materials Publisher makes available for, or that result from use of, the Offering. 
13.8.	“End User” means any person Customer permits to use an Offering or access Customer Data. 
13.9.	“Feedback” means ideas, suggestions, comments, input, or know-how, in any form, that Customer provides to Publisher in relation to Publisher’s Confidential Information, products, or services. Feedback does not include sales forecasts, future release schedules, marketing plans, financial results, and high-level plans (e.g., feature lists) for future products. 
13.10.	“Insolvent” means admitting in writing the inability to pay debts as they mature; making a general assignment for the benefit of creditors; suffering or permitting the appointment of a trustee or receiver for all or any of its (i.e., the non-terminating party’s) assets, unless such appointment is vacated or dismissed within 60 days from the date of appointment; filing (or having filed) any petition as a debtor under any provision of law relating to insolvency, unless such petition and all related proceedings are dismissed within 60 days of such filing; being adjudicated insolvent or bankrupt; having wound up or liquidated; or ceasing to carry on business. 
13.11.	“Offering” means all services, websites (including hosting), solutions, platforms, and products identified in an Order and that Publisher makes available under or in relation to this Agreement, including the software, equipment, technology, and services necessary for Publisher to provide the foregoing. Offering availability may vary by region. 
13.12.	“Order” means an ordering document used to transact the Offering via the Marketplace. 
13.13.	“Personal Data” means any information relating to an identified or identifiable natural person. 
13.14.	“Representatives” means a party’s employees, Affiliates, contractors, advisors and consultants. 
13.15.	“Standard Contractual Clauses” means the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR. 
13.16.	“Subcontractor” means any third party: (1) to whom Publisher delegates its obligations under this Agreement, including a Publisher Affiliate not contracting directly with Customer through an Order; or (2) who, in performing under a contract between it and Publisher or a Publisher Affiliate, stores, collects, transfers or otherwise processes Personal Data (obtained or accessed in connection with performing under this Agreement) or other Customer Confidential Information. 
13.17.	“use” means to copy, download, install, run, access, display, use or otherwise interact with.