These general terms and conditions for services (these “Terms”) are the only terms that govern the provision of services by MVP Group Inc. (“MVP”) to the customer indicating its assent to these Terms (“Customer”). The accompanying Order Form and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior and contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of a conflict between these Terms and the Order Form, these Terms shall govern unless the Order Form expressly states that the terms and conditions of the Order Form shall control. These Terms prevail over any of Customer’s general terms and conditions regardless of whether or when Customer has submitted such terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
BY SELECTING THE “AGREE” CHECKBOX ON THE ORDER FORM OR OTHERWISE INDICATING ASSENT TO THESE TERMS, CUSTOMER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THESE TERMS AND AGREES THAT IT IS LEGALLY BOUND HEREBY.
1.1 “Affiliates” means any entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with a party. The term "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a party, through the ownership of more than fifty percent (50%) of the voting securities of a party.
1.2 “Customer Content” means any Customer-owned, Customer-licensed, Customer-syndicated, or
Customer copyrighted media content (including, without limitation, video footage, photograph, audio clips, images, text, artwork, or web pages, editorial, end-user generated content, or surveys) provided to MVP by Customer for the purpose of using or facilitating Customer’s use of the Services during the Term of the Agreement.
1.3 “Data Source(s)” means, collectively, the Third-Party Data and the MVP Data (whether accessed via MVP-controlled domains or third-party dashboards or APIs that connect directly to MVP-controlled domains).
1.4 “MVP Data” means curated data provided by MVP via its Subscription Services to the Customer under the Agreement.
1.5 “MVP Technology Platform” means the MVP proprietary technology used by MVP in providing the Subscription Services including all related intellectual property whether owned by MVP or its suppliers, or licensed to MVP, and all enhancements, derivatives, improvements, modifications or extensions of such technology conceived, reduced to practice or developed during the term of this Agreement or otherwise.
1.6 “Order Form” means the ordering document that identifies the Subscription Services including the subscription term and associated subscription fees, and any Data Source License.
1.7 “Professional Services“ means hourly consulting and managed services for the following: data analysis, Report creation, program management, enablement and training, and consulting performed by MVP for Customer as described in a Scope of Work.
1.8 “Reports” means Customer specific analysis deliverables that are generated via Professional Services and expressly described in an SOW.
1.9 “Scope of Work” or “SOW” means the scope of work, including any addenda thereto, that describes the Reports and Professional Services to be provided hereunder entered into between Customer and MVP upon commencement of the Subscription Services or from time to time.
1.10 “Services” means all Subscription Services and Professional Services made available to Customer by MVP under this Agreement.
1.11 “Subscription Services” means the software-as-a-service solution offered by MVP utilizing MVP’s proprietary MVP Technology Platform under an Order Form between the parties.
1.12 “Third-Party Data” means the user-generated content and statistical data provided by (a) third party social networks, data enrichment providers or websites (collectively, the “Social Networks”), and (b) broadcast and streaming networks who provide viewership and other data. Third Party Data includes, without limitation, short-form end user content such as Tweets, posts, links to external websites found within posts, and publicly available end user profile information.
2.1 Scope of Agreement. This Agreement governs the Services provided by MVP to Customer including the Subscription Services, Professional Services, and any specific Data Source Licenses. The Subscription Services and any Data Sources Licenses (as may be granted to Customer and described in an Order Form) shall be subject to an Order Form signed by the parties. The Professional Services shall be subject to an SOW signed by the parties. Any new features that augment or enhance the Services (which in some cases may be fee-based enhancements under a separate Order Form) will also be subject to this Agreement. In the event of a conflict between this Agreement and either an Order Form or SOW, this Agreement shall prevail. Affiliates of Customer may not access the Services; however, Affiliates may purchase Services subject to a separately executed Order Form and/or SOW.
2.2 Subscription Services. Subject to Customer’s payment of the applicable fees and compliance with this Agreement, MVP hereby grants Customer, during the Term, a subscription license to use the Subscription Services as part of Customer’s research, internal use, proposals or reports.
2.3 Professional Services. At Customer’s election and subject to an executed SOW between the parties, MVP shall provide Professional Services to Customer.
2.4 Data Source License. As expressly stated in an Order Form and for the duration indicated therein, Customer may elect to license from MVP specific Data Sources. In such event, the following shall apply:
(a) Upon execution of an Order Form which expressly includes a license to a Data Source, MVP shall provide Customer with an API key to access the specific API associated with the Data Source. Customer may not share the API key for the Data Source with any third party, must keep the API key and all log-in information secure, and must use the API key as Customer's sole means of accessing the API. The API key may be revoked at any time by MVP.
(b) Subject to and conditioned on Customer's payment of applicable Data Source license fees and compliance with this Agreement, MVP hereby grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license for the duration described in an Order Form to use the Data Source API solely for Customer’s internal business purposes.
(c) Customer acknowledges that, as between Customer and MVP, MVP owns all right, title, and interest, including all intellectual property rights, in and to the Data Sources.
2.5 Cooperation. Customer acknowledges that the Services will be performed in cooperation with Customer. Customer will furnish to MVP such (a) Customer Content, (b) cooperation, technical assistance, resources and support, and (c) access to Customer’s client information and internal data analysis, only as required by MVP and for the sole purposes of this Agreement.
2.6 Problems. If Customer or its third-party licensors or vendors fail to fulfill any of Customer’s responsibilities in a timely manner under Section 2.5 for any reason (including without limitation, changes, errors or omissions by Customer), which delays provision of the Services or results in additional costs, then MVP will undertake commercially reasonable efforts to mitigate such effects. In such event, Customer agrees (a) to pay MVP its reasonable additional costs and (b) that any delivery dates, milestones or other time limits specified for MVP performance shall be appropriately extended.
2.7 Social Networks and API Reliability. MVP provides access to the Subscription Services and any Data Sources (including associated APIs) dependent on the uptime of the Social Networks and third-party providers. MVP is not responsible for outages or delays originating from the Social Networks or their service providers. MVP will use commercially reasonable efforts to notify Customer immediately in the event of an outage caused by a third-party provider and to restore service.
3.1 Customer Content. Customer hereby grants MVP a nonexclusive and royalty-free right and license to use the Customer Content solely for the purpose of performing the Services. Customer represents and warrants that it owns all right, title and interest, or possesses sufficient license rights, in and to the Customer Content as may be necessary to authorize the use thereof contemplated by this Agreement. For analysis of Customer social content containing images or videos, Customer grants MVP limited permission to electronically scan any of its public social posts for the presence of Customer, partner or sponsored entity logos or name or likeness contained therein. Except for the limited rights and licenses expressly granted hereunder concerning the Customer Content, no other license is granted, no other use is permitted and Customer shall retain all right, title and interest in and to all Customer Content (including all intellectual property and proprietary rights therein).
3.2 Ownership. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Services or the Data Sources. MVP shall retain ownership of all intellectual property rights in the Services and Data Sources and the MVP Technology Platform that MVP uses to deliver the Services hereunder including all related ideas, concepts, systems, software, interfaces, tools, utilities, templates, forms, content, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information. MVP reserves all rights not expressly granted to Customer in this Agreement.
3.3 Use Restrictions. Customer shall not use the Services or Data Sources for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as expressly set forth in this Agreement, Customer shall not at any time, and shall not permit others to: (i) copy, modify, or create derivative works of the Services or Data Sources, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Data Sources; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services or Data Sources, in whole or in part; (iv) remove any proprietary notices from the Services or Data Sources; (v) use the Services or Data Sources in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) combine or integrate the Services or Data Sources with any software, technology, services, or materials not authorized by MVP; (vii) design or permit the Customer’s applications to disable, override, or otherwise interfere with any MVP-implemented communications to end users, consent screens, user settings, alerts, warning, or the like; or (viii) use the Services or Data Sources to replicate or attempt to replace the user experience of the MVP offerings. Customer will promptly notify MVP in writing of any unauthorized use, reproduction or distribution of any Services or Data Sources.
3.4 Feedback. If Customer or any of Customer's employees, contractors, and agents sends or transmits any communications or materials to MVP by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services or Data Sources, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), all such Feedback is and will be treated as MVP proprietary and confidential.
For purposes of this Agreement, confidential information shall include the terms of this Agreement, MVP’s pricing hereunder, information pertaining to the Services and the underlying technology, Data Sources, Customer Content and other proprietary information, material or data that either party provides to the other in connection with this Agreement which is clearly identified in writing at the time of disclosure as confidential or reasonably should be known to be proprietary or confidential (“Confidential Information”). Each party agrees: (a) to keep confidential all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights under this Agreement; and (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need-to-know basis to its contractors who have executed similar agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. Notwithstanding the foregoing, this section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation. The confidentiality obligations set forth herein shall survive the termination of this Agreement.
5.1 Fees and Expenses. Customer agrees to pay MVP’s fees in the amounts and at the times specified in the applicable Order Form and SOW. Customer may add additional elements to any Services by the parties executing a mutually agreeable amendment. All additional elements added to the Subscription Services during the middle of a month will be billed at the start of the following month for the applicable billing period described in any Order Form.
5.2 Payment Terms. Unless specified otherwise, all amounts due hereunder shall be paid within 30 days after invoice in US dollars at MVP’s address (or, at its option, to an account specified by MVP). Any amount not paid when due shall bear a late payment charge, until paid, at the rate of 1% per month (pro-rated on a daily basis) or the maximum amount permitted by law, whichever is less. Customer agrees to reimburse MVP for all costs (including attorneys’ fees) incurred if it institutes an action to collect late payments.
5.3 Taxes. All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon MVP‘s net income.
6.1 Professional Services. MVP warrants that the Professional Services will be performed in a professional and workmanlike manner.
6.2 Third Party Data. Customer agrees to comply with the applicable terms imposed by third parties that govern the use of Third Party Data.
6.3 Disclaimer of Warranties. THE SERVICES AND DATA SOURCES ARE PROVIDED "AS IS" AND MVP SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. MVP SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. MVP MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES AND DATA SOURCES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF CUSTOMER'S OR ANY THIRD PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
7.1 Infringement. Except as provided below, MVP shall (i) defend Customer against any claim by a third party that the Subscription Services infringe a patent, or any copyright or trade secret, of such third party and (ii) indemnify Customer for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) finally awarded and arising out of such claim; provided, that (a) Customer promptly provides MVP written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (b) MVP shall have sole control and authority to defend, settle or compromise such claim. If the Subscription Services become, or in MVP’s opinion are likely to become, the subject of any injunction preventing their use as contemplated herein, MVP may, at its option and as Customer’s sole and exclusive remedy, (1) obtain for Customer the right to continue using the Subscription Services or (2) replace or modify the Subscription Services so that they become non-infringing without substantially compromising their principal functions. If (1) and (2) are not reasonably available to MVP, then MVP may (3) terminate this Agreement upon written notice to Customer and, in the case of the Subscription Services, require Customer to cease using the Subscription Services, as applicable, and MVP shall cease any further billing to Customer.
7.2 Exclusions. MVP shall have no liability or obligation to Customer hereunder with respect to any claim based upon (a) any use of the Subscription Services not strictly in accordance with this Agreement, (b) use of the Subscription Services in an application or environment or on a platform or with devices for which it was not designed or contemplated, (c) alterations, combinations or enhancements of the Subscription Services not created by MVP, (d) Customer’s continuing allegedly infringing activity after being notified thereof or its continuing use of any version of the Subscription Services after being provided modifications that would have avoided the alleged infringement or (e) any intellectual property right in which Customer or any of its Affiliates have an interest.
7.3 Entire Liability. The foregoing states the entire liability of MVP, and Customer’s sole and exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Subscription Services or any part thereof or by its use or operation.
NEITHER MVP NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR DATA SOURCES WILL BE LIABLE (WHETHER BASED ON WARRANTY, CONTRACT, TORT, PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MVP HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE) FOR: (A) ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOSS OF DATA, OR LOSS OF GOODWILL; (B) SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE; (C) THE COST OF SUBSTITUTE PRODUCTS OR SERVICES; (D) ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; OR (E) THE USE OF OR INABILITY TO USE THE SERVICES OR DATA SOURCES. IN NO EVENT SHALL THE TOTAL, AGGREGATE LIABILITY OF MVP AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, ARISING FROM OR RELATING TO THE AGREEMENT, SERVICES, DATA SOURCES, OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR DATA SOURCES EXCEED THE TOTAL AMOUNT OF FEES CUSTOMER ACTUALLY PAID TO MVP HEREUNDER IN THE TWELVE MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.
9.1 Term. This Agreement shall commence on the date of the applicable Order Form and continue in effect so long as any Order Forms, or SOWs remain in effect, unless otherwise terminated as provided herein (the “Term”). If the Agreement terminates as a result of there being no active Order Form or SOW, the Agreement will automatically become effective again in the event that a new Order Form or SOW is entered into by and between the parties.
9.2 Termination. The Agreement may be terminated early (a) by either party if the other party materially breaches the Agreement and does not cure the breach within thirty (30) days of written notice of the material breach; (b) by either party if the other party becomes insolvent, invokes as a debtor any laws relating to the relief of debtors’ or creditors’ rights, or has such laws invoked against it as a debtor; (c) by MVP upon ten (10) business days’ notice to Customer if Customer is more than ninety (90) days late in paying any fees due to MVP; or (d) by MVP immediately if Customer uses the Services in an unauthorized manner and fails to cease using the Services immediately after notice of such unauthorized usage.
9.3 Effects of Termination. Upon expiration or termination of this Agreement for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except that (a) Customer’s liability to pay for all Services performed and Data Source Licenses (and non-cancelable expenses incurred) prior to the termination date shall not be extinguished, and shall become due and payable on the termination date, and (b) all other obligations that accrued prior to the effective date of termination and remedies for breach of this Agreement shall survive any termination, (c) the provisions of Sections 3 (Proprietary Rights), 4 (Confidentiality), 5 (Payments), 6 (Warranty and Disclaimers), 7 (Indemnification), 8 (Limitation of Liability), 10 (General Provisions) and this Section 9 shall survive, and (d) Customer shall cease all use of any Services including all direct data feeds, APIs, dashboards, data file exports and Data Sources.
10.1 Amendments. No changes, modifications or waivers may be made to this Agreement except via a written amendment to this Agreement that is signed by both parties. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflicts of law provisions or any rule that would cause the application of the laws of any other jurisdiction. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Texas, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover the costs and expenses (including reasonable attorneys’ fees) that it incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
10.3 Export Regulation. The Services and Data Sources may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services and Data Sources to, or make the Services and Data Sources accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services and Data Sources available outside the US.
10.4 Relief. Each party agrees that, in the event of any breach or threatened breach of Section 3 (Proprietary Rights) or 4 (Confidentiality), the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain, temporarily or permanently, such breach or threatened breach, without the necessity of posting any bond or surety. Such remedies shall be in addition to any other remedy that the non-breaching party may have at law or in equity.
10.5 Force Majeure. Neither party shall be liable to the other for failure to perform hereunder if and to the extent such failure results from unforeseeable causes beyond the affected party’s reasonable control, including war, fire, major accident and catastrophic weather (collectively “Force Majeure Event”). Each party will promptly notify the other party in writing of any Force Majeure Event and the anticipated duration of the affected party’s inability to perform. In the event of a Force Majeure Event, either party shall have the right to suspend the Services under this Agreement upon written notice to the other party. Any suspension of Services requested by Customer due to a Force Majeure Event shall extend the Term of this Agreement (and the associated Services) but shall not terminate the Agreement, and such Force Majeure Event shall be deemed resolved upon expiration of the Suspension at which time the Services shall resume. The following is a nonexclusive list of circumstances that are not Force Majeure Events: (i) economic hardship; (ii) changes in market conditions; and (iii) insufficiency of funds. The parties agree that Force Majeure Events shall not excuse any payment due from one party to the other.
10.6 Notices. All notices under this Agreement will be in writing, in English and will be deemed to have been duly given when received and acknowledged electronically or, if personally delivered, when receipt is electronically confirmed or certified mail receipt received by sender.
Notices to MVP:
Attn: Brian Foley, Chief Executive Officer
MVP Group Inc
14900 Avery Ranch Blvd
Suite C200 PMB 1104
Austin, Texas 78717
Notices to Customer:
The address used for Customer in the Order Form
10.7 Assignment. This Agreement and the rights and obligations hereunder may not be assigned or otherwise transferred by either party without the prior written consent of the other, except that MVP may assign its rights and obligations hereunder to any of its Affiliates or to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of stock or assets, merger, consolidation or otherwise). Any attempted transfer in violation hereof will be void and of no effect. This Agreement will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties.
10.8 Independent Contractors. The parties shall be independent contractors in their performance under this Agreement, and nothing contained herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose. MVP may subcontract performance of any Service.
10.9 No Interference. During the term of this Agreement and for one year thereafter, neither party will directly or indirectly recruit, employ or retain any employee of the other party, or otherwise solicit, induce or influence any employee to leave their employment with the other party, or attempt to do so, except with the other party’s written consent.
10.10Publicity. During the term of this Agreement, each party authorizes the other to include its name and logos in either Customer presentations or briefings or MVP investor or customer presentations as part of its marketing efforts. Except for the foregoing, any news release, public announcement, advertisement or publicity released by either party concerning this Agreement will be subject to prior approval of the other party.