This Master Services Agreement (“MSA” or “GSA”) is between MIDLDEV OÜ, and the customer ordering the Services (“Customer”, “Client”, or “you”) each a “party” and together the “parties”.
1. Defined Terms
3. Customer Obligations
5. Intellectual Property
8. Term and Termination
9. Confidential Information
10. Privacy Practices
11. Level of Service
12. Limitations on Damages
15. Publicity, Use of Marks
17. Force Majeure
18. Governing Law
Schedule 1. Defined Terms
Acceptable User Policy
The defined terms in Schedule 1 shall be applicable to the Agreement.
2.1. MIDLDEV OÜ shall provide the Services in accordance with the Agreement and all laws applicable to MIDLDEV OÜ. MIDLDEV OÜ shall provide support only to those individuals part of the customer’s legal entity and is not required to provide any support directly to Customer’s end users. Customer remains liable for the acts and omissions of Customer’s end users.
2.2. Customer may not use the Services in any situation where failure or fault of the Services or the Customer Configuration could lead to death or serious bodily injury of any person or physical or environmental damage.
For Services where MIDLDEV OÜ’s access to the Customer Configuration is necessary to perform the Services, Customer shall grant MIDLDEV OÜ a reasonable method to access the Customer Configuration. Customer shall cooperate with MIDLDEV OÜ’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement. Customer is responsible for keeping its billing and other account information up to date. Customer is responsible for determining the suitability of the Services and Customer’s compliance with any applicable laws, including export laws, financial laws and data privacy laws.
Customer shall use reasonable security measures and precautions in connection with its use of the Services, including appropriately securing and encrypting in transit and at rest Sensitive Data stored on or transmitted using the Customer Configuration (including but not limited to Customers’ private cryptographic keys); and shall take appropriate measures to otherwise prevent access to Sensitive Data by MIDLDEV OÜ where MIDLDEV OÜ’s access to the premises, systems or networks managed or operated by Customer may result in its exposure. Customer Data is, and at all times shall remain, Customer’s exclusive property. MIDLDEV OÜ shall not use or disclose Customer Data except as materially required to perform the Services or as required by law.
5.1. Pre-Existing. Each party shall retain exclusive ownership of Intellectual Property created, authored, or invented by it prior to the commencement of the Services. If Customer provides MIDLDEV OÜ with its Customer IP, Customer hereby grants to MIDLDEV OÜ, during the term of the applicable Service Order, a limited, worldwide, non-exclusive, non-transferable, royalty-free, right and license (with right of sub-license where required to perform the Services) to use the Customer IP solely for the purpose of providing the Services. Customer represents and warrants that Customer has all rights in the Customer IP necessary to grant this license, and that MIDLDEV OÜ’s use of Customer IP shall not infringe on the Intellectual Property rights of any third party.
5.2. Proprietary Rights; Deliverables. Unless otherwise specifically stated in the applicable Service Order, and excluding any Customer IP, as between the parties, MIDLDEV OÜ shall own all Intellectual Property created in providing the Services or contained in the Deliverables. Subject to Customer’s compliance with the terms of the Agreement, MIDLDEV OÜ grants to Customer a limited, worldwide, non-exclusive, non-transferable, royalty-free right and license (without the right to sublicense) to use: (A) any Intellectual Property provided by MIDLDEV OÜ to Customer as part of the Services (excluding Third Party Software, Open Source Software, and Deliverables) solely for Customer’s internal use and as necessary for Customer to enjoy the benefit of the Services during the term of the applicable Service Order; and (B) any Intellectual Property provided by MIDLDEV OÜ to Customer as part of the Deliverables (excluding Third Party Software and Open Source Software) solely for Customer’s internal use in perpetuity.
5.3. OPEN SOURCE. Any Open Source Software distributed or otherwise provided for Customer use as part of the Services and/or Deliverables is subject to the terms of the applicable open source license. To the extent there is a conflict between this MSA and the terms of the applicable open source license, the open source license shall control.
6.1. Fees. Customer shall pay the Fees due within 30 days from the invoice date. If Customer has arranged for payment by credit card or automated clearing house, MIDLDEV OÜ may charge Customer’s card or account on or after the invoice date. If Customer’s undisputed payment is overdue by 15 days or more, MIDLDEV OÜ may immediately suspend the associated Services and any other services Customer receives from MIDLDEV OÜ on written notice. MIDLDEV OÜ shall undertake collection efforts prior to suspension. Invoices that are not disputed within 120 days of the invoice date are conclusively deemed to be accepted as accurate by Customer. Customer shall pay the Fees in the currency identified on the Service Order, and, except as expressly permitted in section 6.3, without setoff, counterclaim, deduction, or withholding. MIDLDEV OÜ may charge interest on overdue amounts at the greater of 1.5% per month or the maximum legal rate, and may charge Customer for any cost or expense arising out of MIDLDEV OÜ’s collection efforts.
6.2. Fee Increases. (A) MIDLDEV OÜ Fee Increases. Unless stated to the contrary in the Agreement and subject to sections 6.2(B) and 6.2(C), there will be no Fee increases during the Initial Term or any Renewal Term. However, MIDLDEV OÜ may increase Fees following expiration of the Initial Term, any Renewal Term, or during any Auto-Renewal Term on giving at least 90 days advance written notice. For purposes of this clause, “advance written notice” means that the notice has been sent and the customer has acknowledged in writing they received it. (B) Holdover Rates. If Customer continues to use any Services following termination of the Agreement or applicable Service Order, Customer shall be responsible for payment of such Services at MIDLDEV OÜ’s then-current market rates.
6.3. Taxes. All amounts due to MIDLDEV OÜ under the Agreement are exclusive of Tax. Customer shall pay MIDLDEV OÜ any Tax that is due or provide MIDLDEV OÜ with satisfactory evidence of Customer’s exemption from the Tax in advance of invoicing. Customer shall provide MIDLDEV OÜ with accurate and adequate documentation sufficient to permit MIDLDEV OÜ to determine if any Tax is due. All payments to MIDLDEV OÜ shall be made without any withholding or deduction for any taxes except for Local Withholding Taxes. Customer agrees to timely provide MIDLDEV OÜ with accurate factual information and documentation of Customer’s payment of any such Local Withholding Taxes. MIDLDEV OÜ shall remit such cost to Customer in the form of a credit on Customer’s outstanding account balance following receipt of sufficient evidence of payment of any such Local Withholding Taxes.
6.4. Reimbursement for Expenses. Unless otherwise agreed in the Service Order, if any of the Services are performed at Customer’s premises, Customer agrees to reimburse MIDLDEV OÜ for the actual substantiated out-of-pocket expenses of its Representatives.
7.1. MIDLDEV OÜ makes no commitment to provide any services other than the Services stated in the Service Order. MIDLDEV OÜ is not responsible to Customer or any third party for unauthorized access to Customer Data or for unauthorized use of the Services. To the maximum extent permitted by law, MIDLDEV OÜ disclaims all responsibility for any situation where the security, availability, or stability of the Services is compromised by: (i) actions of Customer or any end user; (ii) software provided by Customer, or (iii) any actions taken by MIDLDEV OÜ which are requested by Customer and not based on the advice or recommendation of MIDLDEV OÜ. MIDLDEV OÜ shall not be liable for any failure to comply with its obligations in the Agreement to the extent that such failure arises from a failure of Customer to comply with its obligations under the Agreement.
7.2. MIDLDEV OÜ may designate certain Services as Unsupported Services. MIDLDEV OÜ makes no representation or warranty with respect to Unsupported Services except that it shall use reasonable efforts as may be expected of technicians having generalized knowledge and training in information technology systems. MIDLDEV OÜ shall not be liable to Customer for any loss or damage arising from the provision of Unsupported Services. If Customer uses any Test Services, then Customer’s use of those Test Services is subject to the Test Terms. At Customer’s request, MIDLDEV OÜ may provide services that are not required by the Agreement. Any such services shall be provided AS-IS with no warranty whatsoever.
7.3. MIDLDEV OÜ and its Representatives disclaim any and all warranties not expressly stated in the Agreement to the maximum extent permitted by law including implied warranties such as merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement.
7.4. Except as expressly provided herein, MIDLDEV OÜ makes no representation or warranty whatsoever regarding Open Source Software or with regard to any third party products or services which MIDLDEV OÜ may recommend for Customer’s consideration.
8.1. Term. This MSA shall continue until terminated in accordance with its terms. Service Orders for Recurring Services shall be subject to the Auto Renewal Term unless: (i) otherwise stated in the Agreement, (ii) the parties enter into an agreement for a Renewal Term, or (iii) either party provides the other with written notice of termination at least 45 days prior to the expiration of the then current term.
8.2. Termination for Convenience. For Recurring Services, unless otherwise stated in the Agreement, Customer may terminate all or part of any Service Order for convenience at any time by giving MIDLDEV OÜ at least 45 days advance written notice; subject to an early termination fee equal to the monthly recurring Fee times the number of months remaining in the then current term of the Service Order for the Services that have been terminated.
8.3. Termination for Cause. (A) Either party may immediately terminate the MSA and/or the affected Service Order(s) for cause on written notice if the other party materially breaches the Agreement and, where the breach is remediable, does not remedy the breach within 30 days of the non-breaching party’s written notice describing the breach. (B) MIDLDEV OÜ may immediately terminate the Agreement and/or the applicable Service Order(s) for breach on written notice if, following suspension of Customer’s Services for non-payment, payment of any invoiced undisputed amount remains overdue for a further ten days. (C) Subject to applicable law, either party may immediately terminate the MSA and any Service Order(s) on written notice if the other party enters into compulsory or voluntary liquidation, or ceases for any reason to carry on business, or takes or suffers any similar action which the other party reasonably believes means that it may be unable to pay its debts. (D) Notwithstanding anything to the contrary in the Agreement, the Fees for the Services through the conclusion of all Service Orders shall become due immediately in the event MIDLDEV OÜ terminates the MSA in accordance with this section 8.3.
8.4. Delayed Termination. If, following Customer’s notice of termination, MIDLDEV OÜ permits Customer to cancel or delay the scheduled termination date, Customer is obligated to re-notify MIDLDEV OÜ in writing at least 45 days prior to any rescheduled termination date.
Each party agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, the exercise of its legal rights under the Agreement, or as required by law; and shall use reasonable care to protect Confidential Information from unauthorized disclosure. Each party agrees not to disclose the other’s Confidential Information to any third party except: (i) to its Representatives, provided that such Representatives agree to confidentiality measures that are at least as stringent as those stated in this MSA; (ii) as required by law; (iii) in response to a subpoena or court order or other compulsory legal process, provided that the party subject to such process shall give the other written notice of at least seven days prior to disclosing Confidential Information unless the law forbids such notice; or (iv) with the other party’s consent.
Customer and MIDLDEV OÜ will comply with applicable laws in relation to their collection and processing of any Sensitive Data in the provision and use of the Services. If and to the extent the EU Directive 95/46/EC or the EU General Data Protection Regulation (EU) 2016/679 (together with any transposing, implementing, or supplemental legislation “GDPR”) applies to the processing Personal Data (as defined in the GDPR) (i) MIDLDEV OÜ will process Personal Data only in accordance with Customer’s instructions, except as required by applicable law, and Customer acknowledges that this Agreement, together with Customer’s configuration and use of the Services, represents its complete instructions to MIDLDEV OÜ on the processing of such Personal Data. If and to the extent the California Consumer Privacy Act of 2018, Cal. Civil Code § 1798.100 et seq. (“CCPA”) applies to the processing of Personal Information (as defined in the CCPA) then the Consumer Privacy Protection Act will apply as part of this Agreement
11.1 MIDLDEV OÜ will perform services set forth in the Service Order to the best of their ability, in a “best effort” manner. Wherever applicable, “best effort” means:
11.2. To the extent permitted by law, the Customer is not entitled to compensation, financial or otherwise, for failure of MIDLDEV OÜ to remediate a service outage in a given time period.
12.1. Notwithstanding anything in the Agreement to the contrary:
(A) MIDLDEV OÜ’s liability arising from: (i) death or personal injury caused by negligence; (ii) fraudulent misrepresentation; or (iii) any other loss or damages for which such limitation is expressly prohibited by applicable law, shall be unlimited.
(B) Subject to section 12.1(A), the maximum aggregate monetary liability of MIDLDEV OÜ and any of its Representatives in connection with the Services or the Agreement under any theory of law shall not exceed the actual damages incurred up to the greater of: (i) an amount equal to six times the Fees payable by Customer for the Services that are the subject of the claim in the first month in which Fees are charged under the Agreement, or (ii) the total amount paid by Customer to MIDLDEV OÜ for the Services that are the subject of the claim in the 12 months immediately preceding the event(s) that first gave rise to the claim.
12.2. Neither party (nor any of its Representatives) is liable to the other party for any indirect, special, incidental, exemplary, or consequential loss or damages of any kind. Neither party is liable for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either party be liable to the other for any punitive damages; or for any loss of profits, data, revenue, business opportunities, customers, contracts, goodwill, or reputation.
13.1. If MIDLDEV OÜ is faced with a claim by a third party arising out of: Customer’s breach of end user agreement or security obligation, then Customer shall hold MIDLDEV OÜ harmless and pay the cost of defending the claim (including reasonable legal and professional fees and expenses) and any damages, losses, fine, or other penalty that is imposed on or incurred by the Indemnitees as a result of the claim. Customer’s obligations under this section include claims arising out of the acts or omissions of Customer’s employees, agents, end users, any other person to whom Customer has given access to the Customer Configuration, and any person who gains access to the Customer Configuration as a result of Customer’s failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by Customer.
13.2. If MIDLDEV OÜ receives notice of a claim that is covered by this section 13, MIDLDEV OÜ shall give Customer prompt written notice thereof. MIDLDEV OÜ shall be allowed to conduct the defense of the matter, including choosing legal counsel to defend the claim, provided that the choice is reasonable and is communicated to the Customer. Customer shall comply with MIDLDEV OÜ’s reasonable requests for assistance and cooperation in the defense of the claim. MIDLDEV OÜ may not settle the claim without Customer’s consent, which may not be unreasonably withheld, delayed or conditioned. Customer shall pay costs and expenses due under this section 13 as MIDLDEV OÜ incurs them.
Customer routine communications to MIDLDEV OÜ regarding the Services should be sent by email or messaging system agreed upon in advance. To give a notice regarding termination of the Agreement for breach, indemnification, or other legal matter, Customer shall send it by electronic mail and overnight postal service to: [email protected] General Counsel MIDLDEV OÜ Kentmanni tn 9-43, Tallinn 10116, Estonia MIDLDEV OÜ’s routine communications regarding the Services and legal notices shall be posted on the customer portal or sent by email or post to the individual(s) Customer designates as contact(s) on Customer’s account. Notices are deemed received as of the time posted or delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time posted or delivered. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices shall be given in the English language.
15.1 MIDLDEV OÜ may not issue any press release or publicity regarding the Agreement, use the Customer name or logo or other identifying indicia, or publicly disclose that it is providing Services to the Customer, unless explicit written consent of Customer has been obtained.
15.2. Customer may not issue any press release or publicity regarding the Agreement, use the MIDLDEV OÜ name or logo or other identifying indicia, or publicly disclose that it is using the Services, unless explicit written consent of MIDLDEV OÜ has been obtained.
Neither party may assign the Agreement or any Service Orders without the prior written consent of the other party, except to an Affiliate or successor as part of a corporate reorganization or a sale of some or all of its business, provided the assigning party notifies the other party of such change of control.
Neither party shall be liable or be in breach of the Agreement (excluding in relation to the Customer’s payment obligations) if the failure to perform the obligation is due to an event beyond its control, including significant failure of a part of the power grid, failure of the Internet, natural disaster or weather event, fire, acts or orders of government, war, riot, insurrection, epidemic, strikes or labor action, or terrorism.
18.1. The Agreement shall be governed by the applicable governing law of the country of Estonia, exclusive of any choice of law principle that would require the application of the law of a different jurisdiction; each party unconditionally and irrevocably submits to the exclusive jurisdiction of the courts of the applicable jurisdiction.
18.2. Notwithstanding any exclusive jurisdiction provision above, Customer agrees that MIDLDEV OÜ may seek to enforce any judgment anywhere in the world where Customer may have assets. No claim may be brought as a class or collective action, nor may Customer assert such a claim as a member of a class or collective action that is brought by another claimant. Each party agrees that it shall not bring a claim under the Agreement more than two years after the time that the claim accrued. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.
18.3. The prevailing party in any action or proceeding relating to the Agreement shall be entitled to recover reasonable legal fees and costs, including attorney’s fees.
19.1. Some terms are incorporated into the Agreement by reference to pages on the MIDLDEV OÜ website and MIDLDEV OÜ may revise those terms from time to time (including the MSA). Such revisions shall only be effective and supersede and form part of the Agreement as of the time: (i) Customer enters into a new Service or Purchase Order referencing the revised terms, or (ii) a Service Order automatically renews pursuant to the Agreement or the parties enter into an agreement for a Renewal Term in which case Customer acknowledges that Customer has reviewed and accepted the then-current version of the terms as of the date of the renewal. If there is a conflict between the terms of the Agreement, the documents shall govern in the following order: the Service or Purchase Order, the Product Terms, and the MSA. The headings or captions in the Agreement are for convenience only. If over time Customer enters into multiple agreements for a given Customer Configuration (for example to add additional components or services) then the most recent terms referenced in the Service Order(s) shall govern the entirety of the Services for the given Customer Configuration.
19.2. Unless otherwise expressly permitted in the Agreement, the terms of the Agreement may be varied only by a written agreement signed by both parties that expressly refers to the Agreement. A Service Order may be amended to modify, add, or remove Services by a formal written agreement signed by both parties, or by an exchange of correspondence that includes the express consent of an authorized individual for both parties. The pre-printed terms of Customer’s purchase order or other business form or terms that Customer provides shall be void and of no effect.
19.3. If any part of this Agreement is found unenforceable, the rest of the Agreement shall continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable and give business efficacy to the Agreement. The parties acknowledge and agree that the pricing and other terms in the Agreement reflect and are based upon the intended allocation of risk between the parties and form an essential part of the Agreement. Each party may enforce its respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past. The relationship between the parties is that of independent contractors and not business partners. Neither party is the agent for the other and neither party has the right to bind the other on any agreement with a third party. Other than Representatives for the purposes of sections 7, 10, and 11, or as otherwise specifically designated a “Third Party Beneficiary”, there are no third party beneficiaries to the Agreement. The use of the word “including” means “including without limitation”.
19.4. The following provisions shall survive expiration or termination of this MSA: Intellectual Property, Confidential Information, Limitation on Damages, Indemnification, Notices, Governing Law, Miscellaneous, all terms of the Agreement requiring Customer to pay any Fees for Services provided prior to the time of expiration or termination or requiring Customer to pay an early termination Fee, and any other provisions that by their nature are intended to survive expiration or termination of the Agreement.
19.5. The Agreement constitutes the complete and exclusive understanding between the parties regarding its subject matter and supersedes and replaces any prior or contemporaneous representation(s), agreement(s) or understanding(s), written or oral.
Signatures provided via electronic signature tools such as DocuSign or HelloSign are deemed as signatures in writing.
This Acceptable Use Policy (“AUP”) describes activities prohibited on the MIDLDEV OÜ platform for the protection of MIDLDEV OÜ and its Representatives, Services, network and other customers.
ABUSE. Customer shall not use MIDLDEV OÜ’s Services or platform to engage in, foster, solicit or promote illegal, abusive or irresponsible behavior including:
1.1. conduct likely to breach any laws, codes or regulations applicable to the parties (including conduct infringing or misappropriating intellectual property, trade secrets, confidential or proprietary information; or which is fraudulent, unfair, deceptive or defamatory);
1.2. unauthorized access to, monitoring or use of, or interference with an internet account, computer, systems, networks, data or traffic;
1.3. intentionally, knowingly or recklessly introducing any malicious code into the Services;
1.7. conduct likely to result in retaliation or adverse action against MIDLDEV OÜ or its services, network, website or Representatives (including resulting in listing of MIDLDEV OÜ IP space on an abuse database);
1.8. conduct intended to withhold or cloak identity or contact information, registering to use Services under a false name, or using an invalid or unauthorized credit card in connection with Services;
1.10. use of any MIDLDEV OÜ provided shared system in a way that unnecessarily interferes with the normal operation of the shared system, or consumes a disproportionate share of system resources; and
1.11. conduct creating a risk to safety or health, national security or law enforcement.
OFFENSIVE BEHAVIOR. Customer shall not be abusive or offensive to MIDLDEV OÜ Representatives. Customer shall not publish, transmit or store on or via the Services content or links to content that MIDLDEV OÜ reasonably believes relates in any manner to child pornography, bestiality, non-consensual sex acts, or live sex acts; or is excessively violent, incites or threatens violence, contains harassing content or hate speech, violates a person’s privacy, is malicious or morally repugnant.
NO HIGH RISK USE. Customer shall not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage (including in connection with aircraft or other modes of human mass transportation, or nuclear or chemical facilities).
VULNERABILITY TESTING. Customer shall not attempt to test the vulnerability of a MIDLDEV OÜ system or network, or attempt to breach MIDLDEV OÜ security measures, by any means.
EXPORT CONTROL. Customer shall ensure Services are not used in breach of export laws, controls, regulations or sanction policies of the United States or Customer’s applicable jurisdiction. Whenever possible, customer shall ensure Services are not used by any person or entity suspected of involvement or affiliation with those involved in activities or causes relating to: human trafficking; illegal gambling; terrorism; narcotics trafficking; arms trafficking or the proliferation, development, design, manufacture, production, stockpiling, or use of nuclear, chemical, or biological weapons, weapons of mass destruction, or missiles. This clause does not apply to delegation operations when the customer is not materially able to pre-screen or refuse delegates.
COOPERATION WITH INVESTIGATIONS AND PROCEEDINGS. Customer agrees MIDLDEV OÜ may permit a relevant authority to inspect Customer’s content or traffic if MIDLDEV OÜ is legally required to do so, provided MIDLDEV OÜ gives Customer reasonable prior notice (where permitted by applicable law and regulation). MIDLDEV OÜ may report to appropriate authorities any Customer conduct MIDLDEV OÜ believes violates applicable law without notice to Customer (including providing any information about Customer, its users or traffic). MIDLDEV OÜ may cooperate in response to a formal request from a law enforcement or regulatory agency investigating conduct MIDLDEV OÜ believes violates applicable law, or in a civil action that on its face meets the requirements for such a request.
CHANGES TO AUP. MIDLDEV OÜ may amend the AUP by providingCustomer 30 days written notice. The revised AUP shall become effective as to Customer on the first to occur of: (i) Customer’s execution of a new or additional agreement for all or part of the Services incorporating the revised AUP, (ii) the first day of an Agreement renewal term beginning at least 30 days after revised AUP publication, or (iii) expiry of written notice of material adverse AUP change. If compliance with the revised AUP would adversely affect Customer’s use of the Services, Customer may terminate the affected Services (without payment of an early termination fee) by giving MIDLDEV OÜ written notice of Customer’s objection no later than 30 days following the date that the revised AUP would otherwise have become effective as to Customer; Customer may continue using the Services for up to an additional 90 days subject to the prior version of the AUP; and MIDLDEV OÜ may decide to waive the AUP change as to Customer in which case the notice of termination shall be of no effect.
AUP BREACH. If Customer breaches the AUP (including unintentionally, resulting from Customer’s failure to use reasonable security precautions, or as a result of activity occurring without Customer authorization) MIDLDEV OÜ may block any content or traffic, suspend the Services, or terminate the Services in accordance with the Agreement. No credit shall be available under any Service Level Agreement for interruptions of Services resulting from AUP breach. Customer’s use of the Services to assist another person in an activity that would breach this AUP if performed by Customer is an AUP breach.