TERMS OF SERVICE
This Software as a Service Agreement (“SaaS Agreement”) is entered into between You (“Subscriber” or “you”) and Magic Pixel Inc, (“Magic Pixel”, or “MP”) with its principal place of business at 7863 W 155th Terrace Overland Park KS 66223. You agree that the following terms and conditions will apply to the services provided under this Agreement and Orders placed thereunder.
PLEASE READ THIS AGREEMENT BEFORE USING MAGIC PIXEL’S SERVICES. BY ACCESSING OR USING MAGICPIXEL’S TAG MANAGEMENT PLATFORM, FIRST PARTY IDENTITY SERVICE AND CUSTOMER DATA PLATFORM, SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES. IF THE PARTIES HAVE A FULLY EXECUTED AGREEMENT THAT EXPRESSLY GOVERNS ORDERS FOR MP’S SOFTWARE AS A SERVICE AGREEMENT, SUCH AGREEMENT SHALL SUPERSEDE THIS AGREEMENT.
1. DEFINITIONS
“Administrator User” means an authorized employee designated by you to serve as technical administrator of the Magic Pixel SaaS Services on your behalf. Each Administrator User must complete training and qualification requirements reasonably required by MP.
“YOUR Content” means all data and materials provided by you to MP for use in connection with the Magic Pixel SaaS Services, including, without limitation, your applications, data files, and graphics.
“Deliverable’ means a quantifiable service to be provided by Other Services and specified in a statement of work, including, without limitation, application program interfaces, configurations, information, documents, reports, technical and non-technical data, specifications, and other material.
“Documentation” means the user guides, online help, release notes, training materials, and other documentation provided or made available by MP to you regarding the use or operation of the Magic Pixel SaaS Services.
“Host” means the computer equipment on which the Software is installed, owned, and operated by MP or its subcontractors.
“YOUR Website(s)” means all your websites and mobile websites (including those of your Affiliates’ internal servers or systems) now or hereafter owned or operated by you or any of your Affiliate, including without limitation, any current and successor websites or mobile websites and all web pages of each of your Website, regardless of whether the web pages are hosted by you, your Affiliate, or a third party on behalf of you or your Affiliate, and all web pages that may be hosted or operated by a third party on behalf of you or any of your Affiliate
that contain your or your Affiliate’s branding and have a look and feel that is consistent with a your Website.
“Maintenance Services” means MP’s support and maintenance services to you under this SaaS Agreement and Exhibit B.
“Magic Pixel SDK” (“SDK”) means MP’s Magic Pixel SaaS product that provides an SDK with capabilities to execute Media Pixels from the website. The SDK is generated based on the configurations set up by the end-user using MP Platform. It contains user-generated code snippets, which, if written incorrectly, can affect the website’s performance. While all checks are in place to prevent commonly made mistakes, Magic Pixel is not responsible for any user-generated code that affects website performance or causes harm to the website.
“Media Pixel and Tag Management Services” denotes MP’s cloud-based media pixel management software, allowing complete media tag management.
“MP Platform” denotes MPs SaaS Services (henceforth referred to as SaaS) platform, which is delivered as a website, which provides a platform to implement enterprise-wide media pixel implementation, measures, and alerts.
“Other Services” means all technical and non-technical services performed or delivered by MP under this SaaS Agreement, including, without limitation, implementation services, and other professional services, training, and education services but excluding the Magic Pixel SaaS Services and the Maintenance Services. Additional Services will be provided on a time and material basis at such times or during such periods, as may be specified in a Schedule and mutually agreed to by the parties. All Other Services will be provided on a non-work for-hire basis.
“Schedule” is a written document attached to this SaaS Agreement under Exhibit A or executed separately by MP and YOU to purchase SaaS Services under the terms and conditions of this SaaS Agreement.
“Software” means the object code version of any software to which you are provided access as part of the Service, including any updates or new versions.
“SaaS Services” refers to the specific MP’s internet-accessible service identified in a Schedule that provides use of MP’s Magic Pixel SDK Software that is hosted by Magic Pixel or its services provider and made available to you over a network on a term-use basis. SaaS Services include Deliverables and Documentation.
“Subscription Term” shall mean that period specified in a Schedule during which you will have online access and use of SaaS Services. The Subscription Term shall renew for successive 12-month periods unless you deliver written notice of non-renewal to MP at least 30 days prior to the expiration of the then-current Subscription Term.
2. SAAS SERVICES
2.1. During the Subscription Term, you will receive a nonexclusive, non-assignable, royalty-free, worldwide right to access and use the SaaS Services solely for your internal business operations subject to the terms of this Agreement and up to the number of server calls documented in the Schedule.
2.2. You acknowledge that this Agreement is a services agreement, and MP will not be delivering copies of the Software to you as part of the SaaS Services.
2.3. Price Increases. MP will notify you of any price increase for the SaaS Service for subsequent terms no later than 90 days before the end of the current term, and the increase will be effective at the beginning of the next term.
3. RESTRICTIONS
You shall not, and shall not permit anyone to: (i) copy or republish the SaaS Services or Software, (ii) make the SaaS Services available to any person other than authorized Magic Pixel SDK users, (iii) use or access the SaaS Services to provide service bureau, time-sharing or other computer hosting services to third parties, (iv) modify or create derivative works based upon the SaaS Services or Documentation, (v) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the SaaS Services or in the Documentation, (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the SaaS Services, except and only to the extent such activity is expressly permitted by applicable law, or (vii) access the SaaS Services or use the Documentation to build a similar product or competitive product. Subject to the limited licenses granted herein, Magic Pixel shall own all right, title, and interest in and to the Software, Services, Documentation, and other deliverables provided under this SaaS Agreement, including all modifications, improvements, upgrades, derivative works, and feedback related thereto and intellectual property rights therein. You agree to assign all rights, titles, and interests in the preceding to Magic Pixel.
4. Your RESPONSIBILITIES
4.1. Assistance. You shall provide commercially reasonable information and assistance to MP to deliver the SaaS Services. Upon reasonable request from MP, you shall promptly deliver your Content to MP in an electronic file format specified and accessible by MP. You acknowledge that MP’s ability to deliver the SaaS Services in the manner provided in this SaaS Agreement may depend upon the accuracy and timeliness of such information and assistance.
4.2. Compliance with Laws. You shall comply with all applicable local, state, national and foreign laws in connection with its use of the SaaS Services, including those related to
data privacy, international communications, and the transmission of technical or personal data. You acknowledge that MP exercises no control over the content of the information transmitted by you or the Magic Pixel users through the SaaS Services. You shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the owner’s permission of such rights.
4.3. Unauthorized Use; False Information. You shall: (a) notify MP immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (b) report to MP immediately and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by you or any Magic Pixel user, and (c) not provide false identity information to gain access to or use the SaaS Services.
4.4. Administrator Access. You shall be solely responsible for the acts and omissions of its Administrator Users. MP shall not be liable for any data loss or functionality caused directly or indirectly by the Administrator Users.
4.5. Your Input. You are solely responsible for collecting, inputting, and updating all your Content stored on the Host and for ensuring that the your Content does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark, or other intellectual property rights of any third party, or (ii) contain anything obscene, defamatory, harassing, offensive or malicious. You shall: (i) notify MP immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (ii) report to MP immediately and use reasonable efforts to stop any unauthorized use of the Service that is known or suspected by Customer, and (iii) not provide false identity information to gain access to or use the Service.
4.6. License from Customer. Subject to the terms and conditions of this SaaS Agreement, you shall grant to MP a limited, non-exclusive, and non-transferable license to copy, store, configure, perform, display and transmit your Content solely as necessary to provide the SaaS Services to the Customer.
4.7. License from Customer. Subject to the terms and conditions of this SaaS Agreement, you shall grant to MP a limited, non-exclusive, and non-transferable license to copy, store, configure, perform, display and transmit your Content solely as necessary to provide the SaaS Services to the Customer.
4.8. Ownership and Restrictions. You retain ownership and intellectual property rights in and to your Content. MP or its licensors retain all ownership and intellectual property rights to the services, software programs, and anything developed and delivered under the Agreement. Third-party technology that may be appropriate or necessary for use with some MP programs is specified in the Program Documentation or ordering document as applicable. The customer’s right to use such third-party technology is governed by the terms of the third-party technology license agreement specified by MP and not under the Agreement.
4.9. Suggestions. MP shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the SaaS Services any suggestions, enhancement requests, recommendations, or other feedback provided by Customers, including Users, relating to the operation of the SaaS Services.
5. ORDERS AND PAYMENT
5.1. Orders. You shall order Magic Pixel SDK SaaS Services under a Schedule. All services acquired by you shall be governed exclusively by this SaaS Agreement and the applicable Schedule. In the event of a conflict between the terms of a Schedule and this SaaS Agreement, the terms of the Schedule shall take precedence.
5.2. Invoicing and Payment. Unless otherwise provided in the Schedule, Magic Pixel shall invoice you for all fees on the Schedule effective date. You shall pay all undisputed invoices within 7 days after you receive the invoice. Except as expressly provided otherwise, payments are non-refundable. All fees are stated in United States Dollars and must be paid by you to Magic Pixel in United States Dollars.
5.3. Expenses. You will reimburse MP for its reasonable pre-approved, out-of-pocket travel and related costs incurred in performing the Other Services. MP obtain written approval from you before incurring any such expense. MP shall comply with the Customer’s travel, and expense policy is made available to MP before the required travel.
5.4. Taxes. MP shall bill you for applicable taxes as a separate line item on each invoice. You shall be responsible for paying all sales and use taxes, value-added taxes (VAT), or similar charges relating to the Customer’s purchase and use of the services. You shall not be liable for taxes based on MP’s net income, capital, or corporate franchise.
6. TERM AND TERMINATION
6.1. Term of SaaS Agreement. The duration of this SaaS Agreement is one (1) year and shall begin on the Effective Date. The SaaS Agreement will auto-renew for three (3) successive one-year (1) terms unless you notify MP of your intent not to renew the Agreement thirty (30) days before the end of the then-current term.
6.2. Termination. Either party may terminate this SaaS Agreement immediately upon a material breach by the other party that has not been cured within thirty (30) days after receiving notice of such breach.
6.3. Suspension for Non-Payment. Magic Pixel reserves the right to suspend delivery of the SaaS Services if you fail to timely pay any undisputed amounts due to MP under this SaaS Agreement, but only after MP notifies you of such failure and such failure continues for fifteen (15) days. Suspension of the SaaS Service Shall not release you of your payment obligations under this SaaS Agreement. You agree that MP shall not be liable to you or to any third party for any liabilities, claims, or expenses arising from or relating to suspension of the SaaS Services resulting from Customer’s nonpayment.
6.4. Suspension for Ongoing Harm. Magic Pixel reserves the right to suspend delivery of the SaaS Services if MP reasonably concludes that your use of the Magic Pixel SaaS Services is causing immediate and ongoing harm to MP or others. In the extraordinary case that MP must suspend delivery of the SaaS Services, MP shall immediately notify you of the suspension, and the parties shall diligently attempt to resolve the issue. MP shall not be liable to you or any third party for any liabilities, claims, or expenses arising from or relating to any suspension of the SaaS Services by this Section 6.4. Nothing in Section 6.4 will limit MP’s rights under Section 6.5 below.
6.5. Effect of Termination.
6.5.1. Upon termination of this SaaS Agreement or expiration of the Subscription Term, MP shall immediately cease providing the SaaS Services. All usage rights granted under this SaaS Agreement shall terminate.
6.5.2. Suppose MP terminates this SaaS Agreement due to a breach by the Customer. In that case, you shall immediately pay to MP all amounts then due under this SaaS Agreement and to become due during the remaining term of this SaaS Agreement, but for such termination. Suppose you terminate this SaaS Agreement due to a breach by MP. In that case, MP shall immediately repay to you all pre-paid amounts for any unperformed SaaS Services scheduled to be delivered after the termination date.
6.5.3. Upon termination of this SaaS Agreement and subsequent written request by the disclosing party, the receiving party of tangible Confidential Information shall immediately return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the parties.
6.5.4. Upon termination of this Agreement and upon written request by you, MP will use commercially reasonable efforts to aid transition of the SaaS Services for a period not to exceed three months. MP will provide Other Services under this section at $150 per/hr. MP will provide the Transition Assistance Services in accordance with this paragraph pursuant to termination under Section 6.2 of this Agreement.
7. SERVICE LEVEL AGREEMENT
The Service Level SaaS Agreement (“SLA”) for the SaaS Services is set forth in Exhibit C hereto. The SLA sets forth the Customer’s sole remedies for availability or quality of the SaaS Services, including any failure to meet any guarantee outlined in the SLA.
8. WARRANTIES
8.1. Warranty. Magic Pixel represents and warrants that: (a) it owns or otherwise has sufficient rights to the SaaS Services and technology to grant the rights in this Agreement and (b) that it will provide the SaaS Services in a professional manner consistent with general industry standards, and (c) that the SaaS Services will perform substantially by the Documentation. For any breach of a warranty, the Customer’s exclusive remedy shall be provided in Section 6, Term and Termination.
8.2. Magic Pixel warrants that the SaaS services will perform in all material respects in accordance with the documentation. Mp does not guarantee that the SaaS services will be performed error-free or uninterrupted or that mp will correct all SaaS services errors. You acknowledge that mp does not control the transfer of data over communications facilities, including the internet, and that the SaaS service may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. This section sets forth the sole and exclusive warranty given by mp (express or implied) with respect to the subject matter of this agreement. Neither mp nor any of its licensors or other suppliers warrant or guarantee that the operation of the subscription service will be uninterrupted, virus-free, or error-free, nor shall mp or any of its service providers be liable for unauthorized alteration, theft, or destruction of customer’s or any user’s data, files, or programs.
8.3. Other Services Warranty. MP warrants that any Other Services it provides will be performed in a good and workmanlike manner in accordance with industry standards. You must provide a written warranty claim to MP thirty (30) business days after the invoice date for Other Services or otherwise stated in a statement of work. MP, at its option, will re-perform Other Services that do not comply with the warranty at no additional charge, or if not practical and solely at MP’s option, refund the part of the Other Services that do not comply with the warranty.
9. LIMITATIONS OF LIABILITY
NEITHER PARTY (NOR ANY LICENSOR OR OTHER SUPPLIER OF MAGICPIXEL) SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA, OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS SAAS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS SAAS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE FEES PAID OR PAYABLE BY YOU UNDER THIS SAAS AGREEMENT DURING THE 12 MONTHS PRECEDING THE DATE THE CLAIM AROSE. The foregoing limitations shall not apply to the parties’ obligations (or any breach thereof) death or bodily injury claims, substantial property damage, willful misconduct, and sections entitled “Restriction,” “Indemnification,” or “Confidentiality.”
10. INDEMNIFICATION
10.1. Indemnification by Magic Pixel. If a third party makes a claim against you that the SaaS Services infringes any patent, copyright or trademark, or misappropriates any trade secret, or that MP’s negligence or willful misconduct has caused bodily injury or death, MP shall defend you and its directors, officers and employees against the claim at MP’s expense and MP shall pay all losses, damages, and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by MP, to the extent arising from the claim. MP shall have no liability for any claim based on (a) your Content, (b) modification of the SaaS Services not authorized by MP, or (c) use of the SaaS Services other than in accordance with the Documentation and this SaaS Agreement. MP may, at its sole option and expense, procure for you the right to continue the use of the SaaS Services, modify the SaaS Services in a manner that does not materially impair the functionality, or terminate the Subscription Term and repay you any amount paid by you with respect to the Subscription Term following the termination date.
10.2. Indemnification by Customer. Suppose a third party makes a claim against Magic Pixel that your Content infringes any patent, copyright, or trademark or misappropriates any trade secret. In that case, you shall defend Magic Pixel and its directors, officers, and employees against the claim at the Customer’s expense. You shall pay all losses, damages, and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.
10.3. Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.
11. CONFIDENTIALITY
11.1. Definition. “Confidential Information” means any information disclosed by a party to the other party, directly or indirectly, which, (a) if in written, graphic, machine-readable, or other tangible forms, is marked as “confidential” or “proprietary” (b) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in writing to the receiving party to be “confidential” or “proprietary” within 30 days of such disclosure, (c) is specifically deemed to be confidential by the terms of this SaaS Agreement, or (d) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself. Confidential Information will also include information disclosed by third parties to a disclosing party under an obligation of confidentiality. Subject to the display of your Content as contemplated by this SaaS Agreement, your Content is deemed Confidential Information of Customer. MP software and Documentation are deemed Confidential Information of MP.
11.2. Confidentiality: Each party shall treat all Confidential Information of the other party as confidential, shall not use such Confidential Information except to exercise its rights and perform its obligations under this SaaS Agreement, and shall not disclose such Confidential Information to any other third party. Without limiting the preceding, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its confidential information from avoiding the disclosure of Confidential Information of the other party. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information. Neither party shall reverse engineer, disassemble, or decompile any prototypes, software, or other tangible objects that embody the other party’s Confidential Information and provided to the party hereunder. Each party may disclose Confidential Information of the other party on a need-to-know basis to its contractors who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the receiving party.
11.3. Exceptions. Confidential Information excludes information that: (a) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving party, (b) is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party, or (c) is independently developed by the receiving party without the use of the Confidential Information as demonstrated by the written records of the receiving party. The receiving party may disclose Confidential Information of the other party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving party shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Each party may disclose the existence of this SaaS Agreement and the relationship of the parties, but agrees that the specific terms of this SaaS Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms of this SaaS Agreement to those with a need to know and under a duty of confidentiality such as accountants, lawyers, bankers and investors.
12. GENERAL PROVISIONS
12.1. Non-Exclusive Service. You acknowledge that SaaS Services are provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict MP’s ability to provide the SaaS Services or other technology, including any features or functionality first developed for Customer, to other parties.
12.2. Assignment. Neither party may assign this SaaS Agreement or any right under this SaaS Agreement, without the consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, however, that either party may assign this SaaS Agreement to an acquirer of all or substantially all of the business of such party to which this SaaS Agreement relates, whether by merger, asset sale or otherwise. This SaaS Agreement shall be binding upon and ensure to benefit the parties’ successors and permitted assigns. Either party may employ subcontractors in performing its duties under this SaaS Agreement, provided, however, that such party shall not be relieved of any obligation under this SaaS Agreement.
12.3. Notices. Except as otherwise permitted in this SaaS Agreement, notices under this SaaS Agreement shall be in writing and shall be deemed to have been given (a) five (5) business days after mailing if sent by registered or certified U.S. mail, (b) when transmitted if sent by facsimile, provided that another promptly sends a copy of the notice means specified in this section, or (c) when delivered if delivered personally or sent by express courier service. All notices shall be sent to the other party at the address set forth on the cover page of this SaaS Agreement.
12.4. Force Majeure. Each party will be excused from performance for up to thirty(30) business days after notice of the non-performing party is received the impacted party which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, riots, acts of terrorism or war, epidemics (except for Covid 19), communication line failures, and power failures.
12.5. Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this SaaS Agreement shall not constitute a waiver of any other or subsequent breach.
12.6. Severability. Suppose any term of this SaaS Agreement is held to be invalid or unenforceable. In that case, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this SaaS Agreement shall remain in full force.
12.7. Entire SaaS Agreement. This SaaS Agreement (including all Schedules and exhibits) contains the whole agreement of the parties. It supersedes all previous oral and written communications by the parties concerning the subject matter of this SaaS Agreement. This SaaS Agreement may be amended solely in writing signed by both parties. Standard or printed terms contained in any purchase order or sales confirmation are deemed rejected and shall be void unless expressly accepted in writing by the party against whom their enforcement is sought; mere commencement of work or payment against such forms shall not be deemed acceptance of the terms.
12.8. Survival. Sections 3, 6, and 8 through 12 of this SaaS Agreement shall survive the expiration or termination of this SaaS Agreement for any reason.
12.9. Export Regulations. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the SaaS Services. You agree that such export control laws govern its use of the SaaS Services (including technical data) and any Services deliverables provided under this Agreement, and you agree to comply with all such export laws and regulations. You agree that no data, information, software programs, and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws.
12.10. No Third-Party Beneficiaries. This SaaS Agreement is an agreement between the parties and confers no rights upon either party’s employees, agents, contractors, partners, customers, or any other person or entity.
12.11. Independent Contractor. The parties have the status of independent contractors, and nothing in this SaaS Agreement nor the parties’ conduct will be deemed to place the parties in any other relationship. Except as provided in this SaaS Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel.
12.12. Statistical Information. MP may anonymously compile statistical information related to the performance of the Services for purposes of improving the SaaS service, provided that such information does not identify Customer’s data or include the Customer’s name.
12.13. Governing Law. This SaaS Agreement shall be governed by the laws of the state of Kansas, excluding its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
12.14. Compliance with Laws. Magic Pixel shall comply with all applicable local, state, national and foreign laws in connection with its delivery of the SaaS Services, including those related to data privacy, international communications, and the transmission of technical or personal data.
12.15. Information Security Requirements. During the term of this Agreement, MP agrees to adhere to the Information Security Requirements outlined in Schedule D.
12.16. Audits. Upon your written request, MP will provide a copy of MP’s then most recent third-party security audits or certifications for its production systems, as applicable, or any summaries that MP generally makes available to its customers at the time of the request. In the absence of audits or certificates, you may, at your expense, audit, using a mutually agreed third-party auditor, the technical and organizational measures taken by MP, and will document the resulting findings. You will keep MP’s trade secrets, data security measures, and information disclosed in connection with any audit confidential in accordance with the confidentiality provisions of the Agreement. Any security risk assessments or audit requested or performed by you: (a) is limited to once in any 12 months, unless required by mandatory data protection law, must not exceed 3 calendar days, and must be conducted under reasonable time, place, and manner conditions; (b) requires reasonable prior written notice of at least 60 days unless earlier required under applicable law; (c) must be conducted based on the parties’ agreed scope and, to the extent possible, rely on certifications and audit reports or other verifications available to confirm MP’s compliance with and exclude any repetitive audits; and (d) must provide MP with a copy of the audit report. If an audit determines that MP is required to take corrective technical and organizational security measures, MP will, at its sole discretion, decide which measures are best suitable to ensure compliance and perform the measure within a reasonable time frame.
12.17. Personnel. MP will determine which of its personnel or subcontractors will perform Other Services. If you are dissatisfied with Other Services, the parties will, in good faith, determine a resolution. According to local law, if the solution involves reassigning personnel, MP will do so as soon as practical and commercially reasonable. You agree that reassignment of personnel may delay Other Services.
12.18. Dispute Resolution. Customer satisfaction is an important objective for MP in fulfilling its obligations under this SaaS Agreement. Except concerning intellectual property rights, if a dispute arises between the parties relating to the interpretation or performance of this SaaS Agreement or the grounds for the termination hereof, the parties agree to hold a meeting within fifteen (15) days of a written request by either party, attended by individuals with decision-making authority, regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies. If, within 15 days after such a meeting, the parties have not succeeded in resolving the conflict, either party may protect its interests by any lawful means available to it.
12.19. Signatures. This SaaS Agreement may be executed in multiple counterparts, each of which, when executed, will be an original, and all of which, when taken together, will constitute one agreement. Delivery of an executed counterpart of a signature page of this SaaS Agreement by facsimile or other electronic transmissions (including via pdf) will be effective as delivery of a manually executed image.
