Mycroft's Master Service Agreement (MSA)
BY INDICATING ‘I ACCEPT’ OR BY USING OR OTHERWISE EXERCISING ANY RIGHTS PROVIDED IN THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) TO USE THE SERVICES (AS DEFINED BELOW) OFFERED BY MYCROFT TECHNOLOGIES INC., A CANADIAN CORPORATION WITH AN ADDRESS AT 240 RICHMOND ST. W. TORONTO, ONTARIO M5V 1V6, CANADA (“MYCROFT”), INCLUDING, FOR EXAMPLE, BY ACCESSING OR USING THE SERVICES, THE INDIVIDUAL ACCEPTING THESE TERMS (THE “REPRESENTATIVE”) AND THE ENTITY OR ORGANIZATION OF WHICH THE REPRESENTATIVE IS A MEMBER (COLLECTIVELY WITH THE REPRESENTATIVE, “CLIENT”) CONSENTS TO BE BOUND BY THIS AGREEMENT, OR, IF APPLICABLE, BY THE TERMS OF A CURRENTLY EFFECTIVE WRITTEN AGREEMENT REGARDING THE USE OF ANY SERVICES AND SIGNED BY AN AUTHORIZED AGENT OF CUSTOMER AND BY MYCROFT. This Agreement incorporates by reference the terms of any document (including any web form or the like) which specifies the nature of the Mycroft Services license by Client hereunder (each, a “Statement of Work”) and/or Statement of Work entered into by Mycroft and Client as of the Effective Date thereof.
BACKGROUND
A. Mycroft provides (i) a proprietary cloud-based software-as-a-service platform that allows its customers to scan, measure and identify deficiencies in a company’s cybersecurity controls in comparison to industry standard certifications and regulatory standards (the "Platform"), together with services related to use and access of such Platform (the "Subscription Services"); (ii) custom development, integration, implementation, reporting, support, and training services relating to the Platform ("Professional Services"); and (iii) any other services provided for under this Agreement or an applicable Statement of Work ((i), (ii) and (iii) are collectively the "Services").
B. Mycroft desires to provide, and Client desires to have Mycroft provide, the Services set out in the Statement(s) of Work executed by the parties and as otherwise set out under this Agreement.
In consideration of the mutual covenants and obligations contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and subject to the terms and conditions hereof, Mycroft and Client agree as follows:
1. DEFINITIONS.
a. All capitalized terms used herein and not defined herein shall have the meanings ascribed to them in Schedule A to this Agreement.
2. SERVICES.
a. Services and Statements of Work. Subject to and conditioned on Client's payment of Fees and compliance with the terms and conditions of this Agreement, Mycroft shall perform the Services as set out in the one or more Statements of Work entered into between the parties. Each executed Statement of Work is automatically deemed to include all the terms and provisions of this Agreement. Absent the execution of a Statement of Work, this Agreement does not, in and of itself, represent a commitment by either party to provide any minimum amount of charges or services. Client shall bear no financial responsibility whatsoever for any additional services rendered or products provided by Mycroft for which Mycroft did not obtain an executed Statement of Work prior to the commencement of such services or the provision of such products. In the event of a conflict between this Agreement and an applicable Statement of Work, the Statement of Work shall take precedence only for the purposes of that Statement of Work and the terms and provisions of this Agreement are not otherwise amended, modified, cancelled, waived, or released.
b. Services to Affiliates. If a Client Affiliate is named in a Statement of Work, then the provisions of this Agreement shall apply to the Client Affiliate and Client shall remain responsible for all acts and failures to act of the Client Affiliate to the same extent as if such acts or failures to act were by Client.
c. Professional Services. From time to time, Mycroft may perform Professional Services and provide the Deliverables to Client in accordance with an applicable Statement of Work entered into by both parties.
d. Subscription Services. Subject to the payment of Fees as set out in the applicable Statement of Work and Client’s compliance with the terms and conditions in this Agreement, Mycroft hereby grants to Client a limited, non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 11(j)) right to access and use:
I. the Platform and the Subscription Services during the Term, solely for use by Authorized Users, as the case may be, in accordance with the terms and conditions herein. Where applicable, Mycroft shall provide to Client and its Authorized Users the necessary passwords and account information to allow Client to access the Platform;
II. any Deliverables incorporated, referenced, linked to or otherwise provided by Mycroft during the Term, solely for use by Authorized Users and for use in conjunction with the Platform, in accordance with the terms and conditions herein; and
III. the Documentation during the Term solely for Client's internal business purposes in connection with its use of the Services.
e. Use Restrictions. Client shall not use the Services or Mycroft Technology in any manner set out in Schedule “B” (Use Restrictions).
f. Modifications.
I. Mycroft may modify the Mycroft Technology and Subscription Services from time to time without notice to Client. Mycroft will use commercially reasonable efforts to notify Client in advance if a change is material, other than those changes which enhance or extend any features or functionality of the Mycroft Technology or the Services.
II. An authorized Client representative may, at any time and from time to time, request additions, deletions, modifications, amendments or any other changes to any Statement of Work. Mycroft will respond within fifteen (15) days of receipt of Client’s request (or such other period as is reasonable in the circumstances) indicating whether it is able to comply with the request, and any Fee changes or other changes required to this Agreement to comply with such request. If Client accepts Mycroft’s proposal to implement the requested changes, an authorized Client representative will provide Mycroft with written approval of Client’s acceptance.
g. Suspension. Notwithstanding anything to the contrary in this Agreement, Mycroft may temporarily suspend Client's or any Authorized User's access to any portion or all of the Mycroft Technology if: (i) Mycroft reasonably determines that (A) there is a threat or attack on any of the Mycroft Technology or the Services, (B) Client's or any Authorized User's use of the Mycroft Technology or the Services disrupts or poses a security risk to Mycroft or to any other client or vendor of Mycroft, (C) Client or any Authorized User is using the Mycroft Technology or the Services for fraudulent or illegal activities, (D) subject to applicable law, Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, or (E) Mycroft provision of the Services or the Mycroft Technology to Client or any Authorized User is prohibited by applicable law; (ii) any vendor of Mycroft has suspended or terminated Mycroft's access to or use of any third-party services or products required to enable Client to access or use the Services or the Mycroft Technology; or (iii) in accordance with Section 4(a) (any such suspension described in subclause (i), (ii), or (iii), a "Service Suspension"). Mycroft shall use commercially reasonable efforts to provide written notice of any Service Suspension to Client and to provide updates regarding resumption of access to the Services following any Service Suspension. Mycroft shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Mycroft will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any Authorized User may incur as a result of a Service Suspension, unless the Service Suspension is a result of the gross negligence or willful misconduct of Mycroft.
h. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Mycroft may monitor Client's use of the Mycroft Technology and Subscription Services and collect and compile Aggregated Statistics. As between Mycroft and Client, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Mycroft. Client acknowledges that Mycroft may compile Aggregated Statistics based on Client Data inputted into or used to provide the Subscription Services. Client agrees that Mycroft may use Aggregated Statistics to the extent and in the manner permitted under applicable law, including to develop, optimize, benchmark, or measure Mycroft’s products or services and for internal research, analytical and informational purposes related to Client's use of Mycroft products or services, provided that such Aggregated Statistics do not identify Client or include any Client Data, Client Confidential Information or Personal Information in identifiable form.
i. Beta Services. From time to time, Mycroft may make Beta Services available to Client. Client may choose to try such Beta Services or not in its sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered Services under this Agreement. However, all restrictions, Mycroft reservations of rights, and Client obligations concerning the Mycroft Technology, the Deliverables and use of any related Third-Party Products will apply equally to Client’s use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire on the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. Beta Services may be subject to additional terms beyond those set out in this Agreement, which shall be provided by Mycroft from time to time upon Client's use of any such Beta Services. Mycroft may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Beta Services are provided "as is" and "as available", and Mycroft will have no liability or indemnification obligations for any harm or damage arising out of or in connection with any Beta Services.
j. Client Policies. In connection with the Services and Deliverables provided under an applicable Statement of Work, Mycroft will comply at all material times with Client’s policies, procedures, rules and regulations regarding safety, security, privacy, and conduct which Mycroft has received prior to entering into this Agreement or an applicable Statement of Work.
k. Vendor Terms. To the extent set out in an applicable Statement of Work, Mycroft may purchase inventory, hardware, equipment, software, data storage, hosting, support services and other services from various sellers and vendors selected by Mycroft at its sole discretion or as directed by Client (collectively, the “Vendors”). Purchases from Vendors shall be made under terms Mycroft deems in its sole discretion as acceptable or as otherwise approved by Client. The terms under which Mycroft shall provide any Vendor hardware, software, equipment, networks, systems or services in respect thereof shall be set out in the Statement of Work under which such hardware, software, networks, systems or services are provided and the provisions of this Agreement applicable to Deliverables shall not apply to such hardware, software, networks, systems or services except to the extent set out therein.
l. Subcontractors. From time to time, Mycroft may use subcontractors selected by Mycroft at its sole discretion to perform any of the Services under this Agreement or an applicable Statement of Work. Notwithstanding the foregoing, Mycroft’s use of a subcontractor shall not release Mycroft from any duty or liability to fulfill its obligations under this Agreement or an applicable Statement of Work.
m. Artificial Intelligence. Mycroft shall have the right to use any Artificial Intelligence to provide the Services and Deliverables (and including without limitation, the right to supply Artificial Intelligence with Client Data).
3. CLIENT RESPONSIBILITIES.
a. Co-operation. Client shall, in a timely manner, provide all cooperation and assistance as may be necessary or reasonably requested by Mycroft to perform the Services (“Cooperation”), which may include access to the Client’s premises and information technology infrastructure. In the event of a material delay or failure to provide Cooperation, Mycroft (i) is not responsible for consequent delays or failure to provide the Services, and (ii) shall be entitled to make reasonable schedule and pricing adjustments, as applicable.
b. Authorized Users. Client is responsible and liable for all uses of the Services resulting from access provided by Mycroft, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement, including acts or omissions by its Authorized Users. Client shall ensure all Authorized Users: (i) use strong, confidential passwords (ii) protect account credentials from disclosure or misuse; and (iii) are aware of and comply with this Agreement as it applies to their use of the Services.
c. Client Data. Client is exclusively responsible for all matters related to Client Data, and Client represents and warrants that: (i) the Client Data does not infringe, violate or misappropriate any third-party intellectual property or privacy rights, or any other rights granted under applicable law; (ii) except as set out in an applicable Statement of Work, the Client Data is accurate, complete and without errors; (iii) Client is the sole owner of the Client Data or has the necessary and required consents, licenses, permits, permissions, releases, clearances, and rights to use, display, process, share, post, upload and transfer the Client Data under this Agreement; (iv) the Client Data does not contain any illegal, defamatory, denigrating, demeaning, obscene, profane, or offensive material or content, except in pursuit of valid research purposes, and does not otherwise violate applicable laws; or (v) the Client Data does not contain any virus, Trojan horse, worm, or other software, script or code, the effect of which is to permit unauthorized access to, or to alter, disable, encrypt, erase, or otherwise harm, any computer, systems, software or data. If Mycroft, in its sole absolute discretion, forms the view that any Client Data uploaded by Client or Authorized User violates this Section 3(c), then Mycroft reserves the right to remove such Client Data and take such other action as Mycroft deems necessary to protect the integrity and operation of the Services and the Mycroft Technology. Any costs associated with such removal may be charged by Mycroft to Client. Mycroft shall notify Client of any removal of Client Data under this Section 3(c) as soon as reasonably possible.
d. Third-party Products. Mycroft may from time to time make Third-Party Products available to Client. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and Client agrees to be bound by the applicable terms to such Third-party Products. If Client does not agree to abide by the applicable terms for any such Third-party Products, then Client should not use such Third-party Products. Client acknowledges that its failure to agree to the applicable terms of any Third-Party Products may impact the provision or use of the Services, by Client as contemplated under an applicable Statement of Work.
4. FEES AND PAYMENT.
a. Fees. Client shall pay Mycroft the fees ("Fees") as set forth in this Agreement or a Statement of Work without setoff or deduction within fifteen (15) days of Mycroft sending the invoice, unless otherwise stated herein. If Client fails to make any payment when due, without limiting Mycroft’s other rights and remedies: (i) Mycroft may charge interest on the past due amount at the rate of 1.5% per month (19.56% per annum when compounded) or, if lower, the maximum amount permitted under applicable law; (ii) Client shall reimburse Mycroft for all reasonable collection costs including legal fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, Mycroft may suspend Client's and its Authorized User's access to any portion or all of the Services or Mycroft Technology until such amounts are paid in full.
b. Expenses. Client shall reimburse Mycroft for all reasonable out-of-pocket expenses incurred in performance of the Services as invoiced, provided such expenses are pre-approved in writing by Client or as set out in this Statement of Work.
c. Taxes. All Fees and other amounts payable under this Statement of Work are exclusive of taxes and similar assessments. Client is responsible for all applicable sales, use, value-added, and similar taxes on amounts payable hereunder, other than taxes imposed on Mycroft income.
d. Withholding Taxes. If laws or regulations require the Client to withhold taxes from the payments made to Mycroft, it (i) may remit such taxes to the proper taxing authority, (ii) shall provide proof of remittance to Mycroft within thirty (30) days of remittance, and (iii) will cooperate in pursuing any refund of such tax Mycroft determines is available.
e. Auditing Rights and Required Records. Client shall maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two (2) years thereafter, sufficient to determine amounts due hereunder. During such period, Mycroft may, at its own expense, on reasonable prior notice, periodically inspect and audit such records. If such audit reveals that Client has underpaid Mycroft with respect to any amounts due and payable during the Term (“Shortfall”), Client shall promptly pay the Shortfall with applicable interest, pursuant to Section 1(a). If the Shortfall equals or exceeds ten percent (10%) of the Fees for any quarter, Client shall also reimburse Mycroft for the costs of the audit.
5. CONFIDENTIALITY, PRIVACY & SECURITY
a. Confidentiality. From time to time during the Term, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, that is/and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (i) in the public domain; (ii) known to the receiving party at the time of disclosure; (iii) rightfully obtained by the receiving party on a non- confidential basis from a third party; or (iv) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (v) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (vi) to establish a party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party’s obligations of non-disclosure with regard to Confidential Information shall survive termination or expiration of this Agreement.
b. Privacy. To the extent a party collects, uses, stores, handles, discloses, disposes of or otherwise processes Personal Information (collectively, “Process”) in relation to or in connection with this Agreement, each party shall Process Personal Information: (i) solely as permitted under this Agreement or as agreed upon in writing by the Parties; and (ii) in accordance with the data protection and privacy laws applicable to such Personal Information.
c. Security. Each party will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of (collectively, “Security Safeguards”): (i) in the case of Mycroft, the Client Data and Client Confidential Information; and (ii) in the case of Client, access and use of and to the Mycroft Technology, and the Services. Those safeguards will include measures designed to prevent unauthorized access to or disclosure of in relation thereto (other than by those with permitted access).
d. Security Events. In the event either party becomes aware of any loss, theft or unauthorized access, copying, modification, use or disclosure of the Confidential Information of the other party, or in the case of Client, the Services or the Mycroft Technology, or in the case of Mycroft, the Client Data (a “Security Event”), it will, in accordance with applicable law (collectively, (i) to (vi) are the “Remediation Efforts”): (i) notify the other party in writing of the circumstances of such Security Event, as well as the nature and details of such loss, theft or unauthorized access, copying, modification or disclosure, including the nature and content of the information so affected as soon as feasible following discovery of the Security Event (taking into account any legal or regulatory restraints on notification and the need to avoid prejudicing current investigations); (ii) promptly respond to such Security Event and investigate and remediate the Security Event in accordance with commercially reasonable industry standards and keep all records, reports and evidence of the Security Event as required by applicable law; (iii) provide cooperation and assistance to the other party, and promptly take such actions as may be necessary or reasonably requested by the other party to minimize the extent of any impacts of such Security Event; (iv) take all such actions to notify any government authorities or affected persons as may be required by applicable law; (v) maintain all relevant and applicable records of, and all relevant and applicable records or other information pertaining to, such Security Event, including the results of any investigation or investigation by law enforcement officials as required by applicable law; and (vi) cooperate in all reasonable respects with the other party, including without limitation, working with the other party on the wording of any required notifications and communications, and take such measures as necessary to minimize the likelihood of future disclosures, losses or breaches. Each party agrees to respond to reasonable inquiries received from the other party in connection with a Security Event, and where requested shall make available relevant employees to discuss such inquiries with the other party’s representatives. Each party shall treat all such information received from the party experiencing the Security Event, as the Confidential Information of the party experiencing the Security Event.
e. Liability of the Security Event. In the event of a Security Event relating to the Client Data, all Remediation Efforts done will be at the Client’s sole cost and expense (including without limitation, for any Security Event Not Caused by Mycroft), unless it is a Mycroft Responsible Security Event.
6. PROPRIETARY RIGHTS.
a. Platform and Documentation. Client acknowledges that, as between Client and Mycroft, Mycroft owns all right, title, and interest, including all intellectual property rights, in and to the Platform and Documentation (and all copies, updates, improvements, enhancements, modifications, changes and derivative works in relation thereto) and, with respect to Third-party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-party Products.
b. Deliverables. Subject to Section 6(c), unless otherwise set out in an applicable Statement of Work, all right title and interest, including all intellectual property rights, in and to the Deliverables (and all copies, updates, improvements, enhancements, modifications, changes, and derivative works in relation thereto) whether created solely by Mycroft or jointly by Mycroft and Client during the Term of this Agreement, shall vest in Mycroft upon their creation. Client assigns and transfers and agrees to assign and transfer and cause any employee, affiliate or contractor to assign and transfer to Mycroft all such right, title and interest, worldwide, including all intellectual property rights, in such Deliverables, and Client shall unequivocally waive, and shall cause each of its employees, affiliates and contractors to unequivocally waive, any moral rights in and to the works comprised in such Deliverables. During the Term of this Agreement, Mycroft grants to Client a limited, non-exclusive, non-transferable (except in compliance with Section 11(k)), worldwide license to use and access the Deliverables, as applicable, for Client to use in conjunction with the Platform and the Services.
c. Policies. Notwithstanding the foregoing (but subject to Section 6(f)), any policies or similar materials generated by Client through the Platform or Services shall be the sole and exclusive intellectual property of Client. Upon payment of Fees in full for the applicable period, Mycroft and its relevant personnel shall assign and transfer to Client all such right, title, and interest, worldwide, including all intellectual property rights in such policies and waive any moral rights therein.
d. Open Source. The Mycroft Technology and the Deliverables may contain or be provided together with free or open-source software. Notwithstanding Sections 6(a) and 6(b), each item of free or open-source software is subject to its own applicable license terms, or in the applicable documentation or the applicable help, notices, about or source files as required by the terms of the applicable open-source license. Copyrights to the free and open-source software are held by the respective copyright holders indicated therein.
e. Client Data. Mycroft acknowledges that, as between Mycroft and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to the Client Data. During the Term, Client hereby grants to Mycroft a non-exclusive, royalty-free, worldwide licence to: (i) reproduce, distribute, and otherwise use, modify, access and display the Client Data and perform all acts with respect to the Client Data as may be necessary for Mycroft to provide the Services to Client, and (ii) to reproduce, distribute, modify, create derivative works of and otherwise use and display Client Data to create the Aggregated Statistics, the right to anonymize, de-identify and aggregate any Client Data such that it no longer contains any Personal Information or any information that identifies the Client. Mycroft shall in no event take steps, or direct a third-party to take steps, to reidentify any Personal Information or identifiable individuals aggregated or anonymized in the Aggregated Statistics.
f. Know-How and Reusable Components. Except for Client’s Confidential Information, Mycroft and its personnel may use and disclose their general skills, knowledge, experience and know-how, including, without limitation, general processes, concepts, methods, methodologies, techniques, ideas and other residual information gained or learned in the provision of the Services. Mycroft may create or provide services or products similar to the Deliverables or anything developed pursuant to this Agreement or an applicable Statement of Work, provided that it does not incorporate or reference any Client Confidential Information or any Client Data. All right, title and interest in and to intellectual property rights developed by or on behalf of Mycroft that is or reasonably may be useable in other work, projects or applications or the provision of other services, including without limitation, all templates, frameworks, methodologies, reports, techniques, models, tools, and sequencing (“Reusable Components”), regardless of whether such Reusable Components are developed in the course of providing the Services or Deliverables under this Agreement or not, will be retained by Mycroft, and notwithstanding anything to the contrary in this Agreement, no right, title, or interest in such Reusable Components will be granted to the Client (or to any other person) under this Agreement, whether by implication or otherwise.
g. Feedback. Client may provide feedback, suggestions, recommendations, and corrections to Mycroft about the Services, the Mycroft Technology and other Mycroft products and services or otherwise in connection the Agreement, including but not limited to by responding to surveys and questionnaires (“Feedback”). Mycroft owns all right, title, and interest in and to any Feedback in any present or future form or format for use in any manner that Mycroft deems appropriate, without monetary or other compensation to Customer.
7. WARRANTIES AND DISCLAIMER.
a. Compliance with Applicable Laws. Each party represents and warrants it will perform its obligations under this Agreement in a manner that complies with all laws, rules, and regulations applicable to said party. Notwithstanding the foregoing, Mycroft is not responsible for determining the requirements of laws applicable to Client’s business, including those relating to Services that Client acquires under this Agreement or an applicable Statement of Work or that Mycroft’s use, access or provision of the Mycroft Technology and the Deliverables, or Client’s receipt thereof, under this Agreement or an applicable Statement of Work meets the requirements of such applicable laws.
b. Warranties for Platform. Mycroft represents and warrants that during the Term and subject to Section 11(e), the Platform will perform and operate materially in accordance with the applicable Documentation. For any breach of this warranty, Client’s exclusive remedy and Mycroft’s entire liability will be for Mycroft to use commercially reasonable efforts to cause the Platform to comply with the warranty within a reasonable period of time after receipt of notice in writing from Client, or termination payment to Client of a refund for the Fees relating the affected Subscription Services during the non-conforming period to the extent specified in the applicable Statement of Work. For greater certainty, Mycroft makes no representation or warranty regarding uptime or availability of the Platform Services or the Mycroft Technology unless otherwise specified in an applicable Statement of Work.
c. Warranties for Professional Services. Mycroft warrants that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of this warranty, Client’s exclusive remedy and Mycroft’s entire liability will be the re-performance or correction and remedy of the applicable portion of the Professional Services. If Mycroft is unable to re-perform the Professional Services as warranted, Client will be entitled to recover the Professional Services fees paid to Mycroft for the deficient Professional Services. Client must make any claim under this warranty to Mycroft in writing within sixty (60) days of the delivery of the applicable Professional Services in order to receive warranty remedies under this Section 7(c).
d. Proper Use and Exclusive Remedy. The warranties set out in Sections 7(b) and 7(c) are subject to Client’s proper use of the Services and the Mycroft Technology and compliance with any other Client obligations under this Agreement or an applicable Statement of Work, and shall not apply where: (i) the Client has engaged in a Use Restriction; (ii) where the warranty issue arising is a result of use of the Services or Mycroft Technology in combination with data, software, hardware, equipment, or technology not provided by Mycroft or authorized by Mycroft in writing; (iii) modifications to the Services or Mycroft Technology not made by Mycroft; (iv) the issue arises from the Client Data; or (v) the issue arises from the use of Third-party Products.
e. NO FURTHER WARRANTIES AND DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT OR AN APPLICABLE STATEMENT OF WORK, THE MYCROFT TECHNOLOGY AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND MYCROFT HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. MYCROFT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. MYCROFT MAKES NO WARRANTY OF ANY KIND THAT THE MYCROFT TECHNOLOGY OR ANY SERVICES, OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, DEFECTS OR ERRORS. MYCROFT MAKES NO WARRANTY OF ANY KIND AND DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR DISCLAIMERS IN RELATION TO ANY THIRD-PARTY PRODUCTS, VENDOR PRODUCTS OR SERVICES, OR DATA STORAGE PROVIDER USED IN CONJUNCTION WITH THE MYCROFT TECHNOLOGY OR THE SERVICES.
f. Client Responsible for Other Client Service Providers. Notwithstanding anything to the contrary in this Agreement, the Client will remain fully responsible for all acts and omissions by (or on behalf of) itself, the Other Client Service Providers, and each of their respective personnel. Without limiting the generality of the foregoing, Mycroft will not be responsible for any disruptions, service degradation, issues or delays in the Services or Deliverables that relate to any products or services provided by or on behalf of the Other Client Service Providers (including without limitation, if the products or services are not in compliance with current industry standards) (“Issues Due to Other Client Service Provider”). Mycroft has the right to charge additional fees for remediation efforts or other services reasonably necessary due to the Issues Due to Other Client Service Provider.
g. Third Party Tools. Notwithstanding anything to the contrary in this Agreement, the Client authorizes the Service Provider to use Third Party Tools to provide the Services and Deliverables. The Service Provider uses reasonable efforts to select Third Party Tools, but disclaims all responsibility for any disruptions, service degradation, issues or delays in the Services or Deliverables that relate to any Third Party Tools.
8. INDEMNIFICATION.
a. Mycroft Indemnification.
I. Mycroft shall indemnify, defend, and hold harmless Client from and against any and all losses, damages, liabilities, costs (including reasonable legal fees) ("Losses") incurred by Client resulting from any third-party claim, suit, action, or proceeding ("Third-party Claim") that the Services, the Mycroft Technology, or any use of the Services, Mycroft Technology in accordance with this Agreement or an applicable Statement of Work, infringes, violates or misappropriates any third party's Canadian intellectual property rights, provided that Client promptly notifies Mycroft in writing of the claim, cooperates with Mycroft, and allows Mycroft sole authority to control the defense and settlement of such claim.
II. If such a claim is made or appears possible, Client agrees to permit Mycroft, at its sole discretion, to: (A) modify or replace the infringing Services or Mycroft Technology; or component or part thereof, to make it non-infringing, or (B) obtain the right for Client to continue use. If Mycroft determines that neither alternative is reasonably available, Mycroft may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Client.
III. This will not apply to the extent that the alleged infringement arises from: (A) use of the Services or Mycroft Technology in combination with data, software, hardware, equipment, or technology not provided by Mycroft or authorized by Mycroft in writing; (B) modifications to the Services or Mycroft Technology not made by Mycroft; (C) Client Data; (D) the instructions or requirements of the Client as it relates to the development of the Deliverables; or (E) Third-party Products.
IV. THIS SECTION 8(A) SETS FORTH CLIENT'S SOLE REMEDIES AND MYCROFT’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR MYCROFT TECHNOLOGY INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
b. Client Indemnification. Client shall indemnify, hold harmless, and, at Mycroft’s option, defend Mycroft from and against any Losses resulting from any Third-party Claim that the Client Data, or any use of the Client Data in accordance with this Agreement, infringes, violates or misappropriates such third party's intellectual property or privacy rights and any Third-party Claims based on Client's or any Authorized User's (i) negligence or wilful misconduct; (ii) use of the Services or the Mycroft Technology in a manner not authorized by this Agreement; (iii) use of the Services or the Mycroft Technology in combination with data, software, hardware, equipment or technology not provided by Mycroft or authorized by Mycroft in writing; or (iv) modifications to the Services or the Mycroft Technology not made by Mycroft, provided that Client may not settle any Third-party Claim against Mycroft unless Mycroft consents to such settlement, and further provided that Mycroft will have the right, at its option, to defend itself against any such Third-party Claim or to participate in the defence thereof by counsel of its own choice.
9. LIMITATION OF LIABILITY.
a. IN NO EVENT WILL MYCROFT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, SAVINGS, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER CLIENT WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
b. IN NO EVENT WILL MYCROFT'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO MYCROFT UNDER THE APPLICABLE STATEMENT OF WORK RELATING TO EVENT GIVING RISE TO THE CLAIM.
c. SECTION 9 WILL NOT APPLY TO LIMIT EITHER PARTY’S LIABILITY FOR FRAUD, OR ANY OTHER LIABILITY THAT CANNOT BE LIMITED BY APPLICABLE LAW. THE ALLOCATIONS OF LIABILITY IN THIS SECTION 9 REPRESENT THE AGREED AND BARGAINED-FOR UNDERSTANDING OF THE PARTIES AND MYCROFT’S COMPENSATION REFLECTS SUCH ALLOCATIONS.
10. TERM AND TERMINATION.
a. Term. This Agreement shall commence on the Effective Date and continue for so long as any Statement of Work remains in effect (the "Term"). For the purposes of this Agreement, the “Effective Date” means the earlier of: (a) the earliest effective date set out in any Statement of Work entered into between the Client and Mycroft, and (b) the date on which the Client first accesses or uses the Mycroft Technology..
b. Termination. In addition to any other express termination right set forth in this Agreement:
I. either party may terminate any Statement of Work applicable therein at any time by providing Mycroft ninety (90) days prior written notice;
II. either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured ninety (90) days after the non- breaching party provides the breaching party with written notice of such breach;
III. either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent by a court of competent jurisdiction to take charge of or sell any material portion of its property or business; or
IV. if custom functionality delivered under a SOW later becomes part of Mycroft’s standard products, Mycroft may migrate Client to the standard functionality and will no longer be required to maintain the custom version, subject to the parties agreeing on any applicable adjustment in Fees, failing which, the Client may terminate the Agreement pursuant to Section 10(b).
c. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement,
I. Client shall immediately discontinue use of the Mycroft Technology and the Services.
II. Client shall delete, destroy, or return all copies of the Documentation and Mycroft Confidential Information and certify the same in writing to Mycroft.
III. Mycroft shall immediately discontinue use of the Client Data.
IV. Where this Agreement or any applicable Statement of Work is terminated by Client for material breach by Mycroft, then Mycroft will refund Client any prepaid Fees covering the remainder of the Term.
V. Where this Agreement or any applicable Statement of Work is terminated by Mycroft for material breach by Client or for convenience by Client, then Client will pay to Mycroft an amount equal to the aggregate of all unpaid Fees (if any) that would otherwise be payable under the applicable Statement of Work for the remainder of the Term, including any and all licensing, maintenance, support or other fees for hardware, software, equipment, hosting, or other third party services and Third-party Products, referred to in a Statement of Work that cannot be cancelled or mitigated and any additional termination for convenience fees set out in the applicable Statement of Work.
VI. No expiration or termination will affect Client's obligation to pay all Fees that may have become due before such expiration or termination, or entitle Client to any refund for Services provided prior to the expiration or termination.
d. Client Data. Upon request by Client made within thirty (30) days after the effective date of termination or expiration of the applicable Term, Mycroft will make Client Data related to the Services for which has expired or been terminated, available to Client. After such 30-day period, Mycroft will have no obligation to maintain, provide or make available such Client Data, and may thereafter delete or destroy all copies of the Client Data in its systems or otherwise in its possession or control, unless legally prohibited from doing so.
e. Survival. The following sections will survive the expiration or termination of this Agreement, regardless of the reasons for its expiration or termination, in addition to any other provision which by law or by its nature should survive: Sections 1, 2(e), 2(h), 2(j), 2(k), 3(b), 3(c), 3(d), 4, 5, 6, 8, 9, 10, and 11. The expiry or termination of this Agreement will not affect the rights of a party to make a claim for damages arising from a breach of any provision of this Agreement which occurred prior to such expiry or termination.
11. GENERAL
a. Entire Agreement. This Agreement, together with the Statements of Work, any other documents incorporated herein by reference, and all related Schedules, constitutes the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter, except where the parties enter into a written agreement expressly stating that said written agreement supersedes this Agreement.
b. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party is solely responsible for payment of all compensation owed to its employees, and all related taxes.
c. Non-Solicitation. During the Term and for two (2) years thereafter, Client will not directly or indirectly solicit or offer employment to or hire any Mycroft employee or subcontractor involved in performing any obligations under this Agreement or any Statement of Work, except for individuals responding to general solicitation not targeted to the person (e.g. job ads).
d. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the parties at the addresses set forth on the first page of the applicable Statement of Work (or such other address that may be later designated by the parties, in writing). Notices are deemed given: (i) when received, if delivered by hand or courier; (ii) when sent, if by facsimile or email during the addressee's normal business hours, or on the next business day if sent after normal business hours; and (iii) on the third business day after mailing by certified or registered mail, postage prepaid.
e. Force Majeure. Mycroft is not liable to Client for any delay or failure to performing its obligations hereunder, if and to the extent such failure or delay is caused by circumstances beyond Mycroft’s reasonable control ("Force Majeure Event"), including but not limited to acts of God, epidemics, pandemics, natural disaster, explosion, war, terrorism, civil unrest, labour disruptions, system or utilities failure, loss or malfunction of data, or governmental actions. The parties shall confer in good faith to mitigate the effect of any Force Majeure Event.
f. Amendments and Modifications. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party.
g. Waiver. The failure by a party to exercise any right hereunder or to insist upon or enforce strict performance of any provision of this Agreement will not waive such party’s right to exercise that or any other right in the future.
h. Severability. The invalidity or unenforceability of any provision or undertaking shall not affect the validity or enforceability of any other provision or commitment of this Agreement.
i. Governing Law. This Agreement shall be governed by, and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. Any dispute relating to this Agreement will be instituted in the courts of the Province of Ontario and each party irrevocably submits to the exclusive jurisdiction of such courts.
j. Assignment. Client may not assign this Agreement or any Statement of Work, in whole or in part, without the prior written consent of Mycroft, such consent not to be unreasonably withheld. Any assignment without such prior written consent is void.
k. Equitable Relief. Notwithstanding anything to the contrary, either party may seek equitable, injunctive, or declaratory relief to enforce any of its intellectual property rights or rights in the Confidential Information in any court of appropriate jurisdiction.
l. Cumulative Remedies. Except as expressly set forth in this Agreement or any applicable Statement of Work, the rights and remedies provided hereunder are cumulative.
m. Export Controls. This Agreement is subject to any laws, regulations, orders, or other restrictions on export from the United States of America (U.S.) or Canada. Client shall not export Mycroft Technology without the prior written consent of Mycroft and compliance with such laws. Client represents and warrants that it (i) is not located in a country that is subject to a U.S. or Canadian government embargo, or designated as a "terrorist supporting" country by either country, and (ii) is not listed as a prohibited or restricted party by either government.
n. Publicity. Mycroft may use Client’s name or logo or refer to Client directly or indirectly in a media release, public announcement, public disclosure, or promotional or marketing materials, to identify Client as a client of Mycroft, with prior written consent from Client.
SCHEDULE A: DEFINITIONS
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For the purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the entity or subject entity.
"Aggregated Statistics" means data and information related to Client's use of the Services that is used by Mycroft in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services, and general industry analysis that may be used for internal purposes. For greater certainty, Aggregated Statistics shall not contain any Personal Information and does not in any way identify Client, or include any identifiable Client Data or Client Confidential Information.
“Artificial Intelligence" or “AI” means the ability of machines to do tasks requiring high levels of discernment and specialized knowledge that are normally considered exclusive to the realm of human cognition. “Artificial Intelligence” or “AI” collectively includes the AI Inputs, AI Outputs, and AI Technology.
“AI Inputs” means any and all of the following generated by or derived from AI Technology which are, in whole or in part, used or relied upon, or licensed, sold, otherwise provided or accessed, by or to Mycroft, including but not limited to, data, writings, works of authorship, graphics, pictures, recordings, any electronic or other information, text or numerals, audio or visual content, or materials of any nature or description.
“AI Outputs” means any and all services, products, data, writings, works of authorship, graphics, pictures, recordings, any electronic or other information, text or numerals, audio or visual content, or materials of any nature or description generated or derived by or on behalf of Mycroft, from any AI Technology or AI Inputs, where such outputs are licensed, sold, provided to, or otherwise made available or accessible by Mycroft to any third party.
“AI Technology” means any and all training, self-improving, or machine learning software, algorithms, hardware or other artificial intelligence tools or aids of any kind.
"Authorized User" means Client's employees, consultants, contractors, and agents (a) who are authorized by Client to access and use the Services under the rights granted to Client pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.
"Beta Services" means certain functionality, features, software or services related to the Services offered by Mycroft on a limited basis which are designated as beta, pilot, trial, limited release, non-production or a similar description.
"Bots" has the meaning set forth in Section 2(e).
"Client Data" means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Client or an Authorized User through the Services or to Mycroft for use with the Services. For greater certainty, Client Data shall not include Aggregated Statistics.
"Confidential Information" has the meaning set forth in Section 5(a).
"Deliverables" means any customized deliverables, work product, reports, documents, presentations, materials, information, designs, graphics, content, ideas, concepts, inventions, innovations, works, trade-marks, trade names, know-how, methods, tools, programs, solutions, resources, methodologies, business processes, templates, test cases and plans, test scripts, technologies, software, computer or mobile programs, software architecture, compilations, source code, object code, executable and pseudo code, machine learning code, mobile or web applications, algorithms, frameworks, resources, methodologies, processes, data (excluding Client Data and Aggregated Statistics) and any modifications, enhancements, upgrades and improvements thereto, together with intellectual property rights therein, provided, created, brought into existence, derived or developed by Mycroft in the provision of Professional Services.
"Documentation" means Mycroft’s user manuals, user documentation, handbooks, and guides relating to the Services provided by Mycroft to Client either electronically or in hard copy form.
"Effective Date" has the meaning set out in Section 10(a)(I).
“Emergency Downtime” will mean periods of time during which Client is not able to access material features and functions of the Platform due to unanticipated maintenance required to maintain the Platform due to an issue from any of Mycroft’s Third Party Tools affecting multiple customers of the corresponding Third Party Tool. Mycroft shall exercise commercially reasonable efforts to conduct such maintenance outside of business hours.
“Excused Downtime” will mean:
(I) Scheduled Downtime;
(II) Emergency Downtime;
(III) downtime occurring as a result of (1) Client’s breach of or non-compliance with the Agreement; (2) incompatibility of Client’s equipment or software with the Platform; (3) poor or inadequate performance of Client’s systems, or the Other Client Service Providers; (4) poor or inadequate performance caused by internet or network connectivity issues beyond the demarcation point of Mycroft to its infrastructure suppliers; and
(IV) downtime caused by circumstances beyond Mycroft’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer, internet or telecommunications failure or delays involving hardware or software not within Mycroft’s possession or control, and network intrusions or denial of service attack.
"Feedback" has the meaning set forth in Section 6(f).
"Fees" has the meaning set forth in Section 4(a).
"Losses" has the meaning set forth in Section 8(a).
“Mycroft Responsible Security Event” means a Security Event relating to Client Data that: (a) is proven to originate from a Mycroft Responsible System; (b) would not have occurred but for Mycroft’s material breach of the Security Safeguards. For greater certainty, any Security Event Not Caused by Mycroft will be deemed to not be a Mycroft Responsible Security Event.
“Mycroft Responsible System” means the servers, networks, devices and systems owned by Mycroft and used to process Client Data.
"Mycroft Technology" means: (a) the Platform, the Documentation and the Deliverables; (b) any modifications, enhancements, upgrades and improvements to any components, in whole or in part, set out in (a); (c) the networks, systems data (excluding Client Data) used by Mycroft to provide (a) and (b); and (d) any and all intellectual property rights in relation to (a), (b) and (c).
“Mycroft’s Third Party Tools” means any third party technology providers that Mycroft uses to deliver a portion of the Services or Deliverables, including without limitation, any AI Technology, as it may be updated from time to time.
"Notice" has the meaning set forth in Section 11(d).
“Other Client Service Provider” means any third party that provides the Client with any goods or services, or any third party which the Client proposes to enter into an agreement with for the provision of goods or services. For clarity, Other Client Service Provider includes without limitation, ISPs, software providers, SaaS providers, cloud service providers, and any Third Party Products.
"Statement of Work" means any statement of work, order form or initiating ordering document entered into between the parties for the provision of the Services.
“Personal Information” means information about an identifiable individual.
“Platform” has the meaning set forth in the Recitals.
“Platform Availability” means will mean, with respect to any particular calendar year, represented algebraically, as follows:
(Total Yearly Time – Unscheduled Downtime-Excused Downtime) / (Total Yearly Time – Excused Downtime)
“Premises” has the meaning set forth in Section 3(d).
"Professional Services" has the meaning set forth in the Recitals.
"Security Event" has the meaning set forth in Section 5(d).
“Scheduled Downtime” will mean the total amount of time during any calendar year, measured in minutes, during which Client is not able to access the Platform, due to planned system maintenance performed by Mycroft. Mycroft will provide the Client with at least one week’s notice prior to any planned system maintenance.
“Security Event Not Caused by Mycroft” means any Security Event related to the acts or omissions of: (a) the Client or its personnel; (b) any Other Client Service Provider or their personnel; (c) any Third-party Products or their personnel; or (d) any of the Third Party Tools or their personnel.
"Service Suspension" has the meaning set forth in Section 2(g).
"Services" has the meaning set forth in the Recitals.
"Subscription Services" has the meaning set forth in the Recitals.
"Term" has the meaning set forth in Section 10(a)(I).
"Third-party Claim" has the meaning set forth in Section 8(a)(I).
"Third-party Products" means any third-party products described in the applicable Statement of Work or incorporated into the Services.
“Total Yearly Time” is deemed to include all minutes in the relevant calendar year.
“Unscheduled Downtime” will mean the total amount of time during any calendar year, measured in minutes, during which Client is not able to access any material features and functions of the Platform that Mycroft is required to provide pursuant to this Agreement, other than Excused Downtime.
“Use Restriction” has the meaning set forth in Schedule B (Use Restrictions).
"Vendor Terms" has the meaning set forth in Section 2(k).
SCHEDULE B: USE RESTRICTIONS
Client shall not, and shall not permit any third party (including Authorized Users) to, access or use the Services or the Mycroft Technology, as the case may be, for any purposes beyond the scope of the use and access granted in this Agreement or an applicable Statement of Work. Client shall not at any time, directly or indirectly, and shall not permit any Authorized Users to:
(i) copy, modify, or create derivative works of the Mycroft Technology, in whole or in part;
(ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mycroft Technology;
(iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Mycroft Technology, in whole or in part, or access or use the Mycroft Technology to develop or create a competitive service or product;
(iv) remove any proprietary notices from the Mycroft Technology or the Services;
(v) use the Mycroft Technology or the Services for any purpose that infringes, misappropriates or violates any intellectual property right or other right of any person, or that otherwise violates applicable law;
(vi) frame or mirror any part of the Mycroft Technology, or otherwise incorporate any portion of the Mycroft Technology into any product or service, unless otherwise provided for an applicable Statement of Work;
(vii) collect, harvest, reverse look-up, trace, or otherwise seek to obtain any information on any other user of or visitor to the Mycroft Technology;
(viii) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Mycroft Technology, the Services or any systems or networks connected to them;
(ix) use the Mycroft Technology to send spam, or to store or transmit any virus, Trojan horse, worm, or other software, script or code, the effect of which is to permit unauthorized access to, or to alter, disable, encrypt, erase, or otherwise harm, any computer, systems, software or data;
(x) access or use the Mycroft Technology that is (expressly or implicitly) not intended for use by Client or any Authorized User;
(xi) use any non-Mycroft automation code in relation to the Mycroft Technology (including any "spider" or "bot");
(xii) probe, scan or test the vulnerability of the Mycroft Technology or the Services or any network or systems connected to them, or breach the security or authentication measures on them or on any network connected to them;
(xiii) use, employ, operate, or create a computer program to simulate the human behaviour ("Bots") or user activity in relation to the Mycroft Technology or the Services; or
(xiv) use, employ or operate Bots or other similar forms of automation to engage in any activity through the use of the Mycroft Technology;
(xv) purchase, sell or facilitate the purchase or sale of any Authorized User accounts to other users or third parties for cash or digital asset consideration.
Upon the occurrence of any of the foregoing (each a “Use Restriction”), Mycroft may immediately and in its sole and absolute discretion, (i) suspend the Services or Client’s access to the Mycroft Technology, or (ii) terminate the Agreement and all associated Statements of Work.