Map My Customers Terms & Conditions
These Master Terms and Conditions and any Service Order Agreement(s), constitute the entire Agreement by and between PARTICIPANT, and Map My Customers, Inc. (VENDOR), located at 2500 Regency Parkway, Cary, NC 27518.
“Administrator” means an individual Authorized User designated by the Participant entering into this Agreement as an Administrator for the account. An Administrator may add/remove Users, act a User themselves, and manage the Participant account.
“User” means a single individual who is authorized by the Administrator to be a User of the Service. A User has full license rights to use the Service, subject to limitations that may be imposed by an Administrator.
“Service Order” means a web-based or signed paper order form completed by an authorized employee of the Participant when ordering the Service.
“Service” means the service provided by Vendor through its Site to Participant under this Agreement, including, without limitation, Vendor’s Map My Customers Solution, a project approval management and control application, including any necessary account set-up, workflows and passwords related thereto, along with any terms, options and limitations relating to these Services set forth in the Order Form. The Service includes the provision on a Software as a Service basis of non-exclusive use and access to the Software, and associated hosting and support services as described herein.
“Site” means the web site at www.mapmycustomers.me and/or such other web site or sites that Vendor communicates to access some or all of the Service.
“Software” means Vendor’s proprietary software used by Vendor to deliver the Service, made available on a “Software as a Service” basis, and all updates and associated documentation thereto made available as a part of the Service pursuant to this Agreement.
“Participant” The entity subscribing to the Service as reflected in the attached Service Order(s).
2. Fair Use Policy / Vendor Representations and warranties
By entering into this Agreement, the parties hereby agree to the terms and conditions set forth herein. Vendor agrees to perform the Services in a professional, workmanlike manner in accordance with highest industry standards. Vendor shall perform the Services and provide the deliverables in compliance with, and shall not violate any, applicable laws and standards. Vendor shall obtain all permits and approvals required under such applicable laws and standards. If any of the Services listed on any Service Order contain or use any software, Vendor additionally represents and warrants to Participant that Vendor is fully authorized to use such software in the performance of Services for Participant. Vendor further represents and warrants that (a) it has full power and authority to grant the rights granted by this Agreement, to perform its obligations under this Agreement without the consent of any other person, and to own its property and the authority to carry on its business; (b) the execution, delivery and performance of this Agreement have been duly authorized by Vendor and this Agreement constitutes a valid and binding agreement of Vendor, enforceable against Vendor in accordance with its terms; (c) Vendor is not under any obligation of a contractual or other nature to any person which is inconsistent or in conflict with this Agreement or which would prevent, limit or impair in any way the performance by Vendor of its obligations under this Agreement or prevent or impair Participant from realizing the full, intended benefits of the Services or deliverables; (d) neither the performance of the Services by Vendor nor the provision to and use by Participant of deliverables, or the exercise of Participant’s rights under this Agreement, will in any way constitute an infringement, misappropriation or other violation of any intellectual property rights or other rights of any third party; and (f) Vendor has obtained all rights and licenses required from third parties to operate, use, license and provide the Services and to enable Participant to realize the full intended benefits of the Services.
3. Files on Vendor’s Servers
Participants are solely responsible for files uploaded to Vendor’s servers. Participant warrants that its files do not violate any laws, both international and domestic. Participant further warrants that files transmitted to and through Vendor do not infringe on copyrights, trademarks, or patents, are not defamatory or trade libelous, are not obscene, pornographic or indecent and do not contain any harmful or malicious software code.
5. Server Network
Vendor’s application server network operates behind firewalls at the hosting facility. Access to the network is limited to Vendor personnel and data center employees who have undergone background checks before being employed. Best-practice security processes are in place for all access points to the network. In the event that changes are implemented to the security policies, Vendor, through its data center, contracts outside vulnerability testing to detect any degradation in security of the network.
6. Operating Systems
Server operating systems are kept up-to-date to protect against viruses and intrusion attempts. Security updates are applied as soon as they are released. Other less sensitive upgrades are applied as needed.
7. Availability and Access to Service
While every effort to maintain its Services, Vendor will not guarantee the availability of services or of access to files. Refer to the Service Level Agreement Addendum for up time assumptions. Vendor does not guarantee uninterrupted, secure or error free operation neither of Vendor servers nor of the equipment of any subcontracted service providers. It is the responsibility of Participants to obtain access to Vendor’s Services through their own individual Internet access.
8. Intellectual Property
Participant acknowledges that Vendor and its licensors own all intellectual property rights in and to the Service, the Software, and the Site, including but not limited to the look and feel, structure, organization, design, algorithms, templates, data models, logic flow, text, graphics, logos, and screen displays associated therewith. Participant will not reverse engineer, decompile or disassemble the Software, or otherwise attempt to reconstruct or discover the source code for the Software. Participant further agrees not to resell, lease, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party for such third party’s benefit. Vendor reserves all rights in the Service and the Software not expressly granted to Participant hereunder. Vendor may derive and compile from Participant usage of the Service certain aggregated and/or analytical information, so long as such aggregated or analytical information does not reveal the contents of any of Participant’s Confidential Information. Such aggregated data and metadata may be used without restriction, including, but not limited to, using such data in conjunction with data from other sources to improve Vendor’s products and services and create new products. Vendor shall have a royalty-free, worldwide, transferable, and perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, or other information provided by Participant or any Authorized User relating to the Service.
9. Right and Title to Content and Data
10. Alteration or Change in Service Offering
Vendor may alter or amend the Services by providing notice to Participant by email or written notification displayed upon Participant’s customer login. Amendments shall be automatically incorporated if Participant elects to continue to use the Services after notice. Should Vendor cease offering the Services, Participant’s membership can be canceled without notice. Vendor may alter the Master Terms & Conditions from time to time, the most current version will be available at https://mapmycustomers.me/terms/. IN NO EVENT SHALL VENDOR, ITS MEMBERS, MANAGERS, EMPLOYEES, SUB-CONTRACTORS OR SUPPLIERS BE LIABLE FOR LOST PROFITS OR INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES OR USE OF SERVICES PROVIDED BY VENDOR.
11. Governing Law and Dispute Resolution
This Agreement shall be governed and considered in accordance with the laws of the United States and the State of North Carolina and the parties consent to the exclusive jurisdiction of the state courts and U.S. federal courts located in Raleigh, North Carolina for any dispute arising out of this Agreement. The prevailing party in any court or arbitration proceeding shall be entitled to recovery of its reasonable attorney’s fees and costs. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, that cannot be resolved by good faith negotiations shall be finally settled by binding arbitration conducted in the English language in Raleigh, NC (USA), under the commercial arbitration rules of the American Arbitration Association (“AAA”). The prevailing party shall be entitled to an award of reasonable attorney fees incurred in connection with the arbitration in such amount as may be determined by the arbitrator. The award of the arbitrator shall be the sole and exclusive remedy of the parties and shall be enforceable in any court of competent jurisdiction. Notwithstanding anything contained in this Section to the contrary, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party, in order to enforce the instituting party’s rights hereunder through specific performance, injunction or similar equitable relief. Prior to the initiation of binding arbitration, the parties shall first attempt to resolve their dispute informally. Every effort should be made to resolve all disputes at the lowest possible level of authority. The parties will use their best efforts to arrange personal meetings and/or telephone conferences as needed. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email or facsimile (provided delivery is confirmed) or U.S. Mail (registered or certified only). Return receipt requested in each case to the address set forth on the initial page hereof or at such other addresses as shall be designated in writing by either party to the other in accordance with this Section. Such notice will be deemed to be given when received. Each party shall have a duty to mitigate damages for which the other party is responsible.
12. Final Agreement
This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof, and may not be amended except by a writing signed by both parties.
13. No Assignment
Participant may not assign this Agreement or any interest herein without Map My Customers’, Inc. express prior written consent.
14. Severability / Survival
If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included. All of the terms of this Agreement which by their nature extend beyond the expiration or termination of this Agreement shall survive the expiration of termination of this Agreement.
15. Mutual Confidentiality
Both parties may, during the course of use of the Services have access to or acquire knowledge, data and information regarding the business, materials, sales, data, systems, campaigns, client lists, contacts and other information of or with respect to each party’s or its affiliates’ business practices which may not be accessible or known to the general public (“Confidential Information”). Except to the extent required by law, the receiving party shall not publish, divulge, or disclose Confidential Information to any other person, firm or corporation during the Term and for a period of two years thereafter. Confidential Information shall not include information which the receiving party is able to demonstrate (a) is or becomes available to the general public other than as a result of a disclosure by the receiving party; (b) is already in the possession of the receiving party and is not subject to an obligation of confidentiality; (c) becomes available to the receiving party on a non-confidential basis from a third person who has a right to make such disclosure; or (d) is independently developed by the receiving party without use of or reference to the Confidential Information.
Participant agrees that Vendor may include Participant as a customer in promotional material for the Services and/or for Vendor, including use of Participant logos, trademarks, trade names and similar identifying material. Participant can revoke this right by submitting a request via e-mail to Vendor at firstname.lastname@example.org. Confirmation of such request (via reply e-mail) must be received for this to be effective. Upon receipt of such request, Vendor will use commercially reasonable efforts to remove any reference to Participant from such promotional material within 30 days and make no further reference to Participant. Upon Vendor’s request, Participant agrees to participate in a mutually agreed upon press release regarding the relationship established by this Agreement. In addition, Participant agrees from time to time, as reasonably requested by Vendor and subject to Participant approval, to participate in Vendor promotional activities, such as preparation of case studies; participation in media interviews; and preparation of quotes and other marketing materials for Vendor. Approvals under this Section shall not be unreasonably withheld or delayed by Participant.
Each party shall each indemnify, defend and hold harmless the other party (and its successors, partners, members, principals, representatives, parents, subsidiaries, affiliates, consultants, insurers and sureties, assigns, officers, directors, employees and/or agents) from any claims, actions, damages, losses or expenses made against or suffered by the other party because of or based upon the indemnifying party’s (or its employees’ or agents’) misrepresentations, negligence, unlawful act or omission, or failure to perform any obligation under this Agreement.
18. Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL PARTICIPANT OR VENDOR AND ITS AFFILIATES, RESELLERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR LICENSORS BE LIABLE FOR: ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, BUSINESS INTERRUPTION, LOSS OF OPPORTUNITY, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF VENDOR HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.
THE AGGREGATE LIABILITY OF PARTICIPANT OR VENDOR AND ITS AFFILIATES, OFFICERS, RESELLERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, RELATING TO THE SERVICES, SAVE IN RESPECT OF LIABILITY ARISING UNDER SECTION 17 (INDEMNIFICATION) OF THESE TERMS, WILL BE LIMITED TO THE GREATER OF: (A) ONE (1) TIMES THE MOST RECENT MONTHLY OR YEARLY FEE THAT PARTICIPANT PAID FOR THAT SERVICE; OR (B) ONE HUNDRED DOLLARS ($100 U.S.D.). THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE PARTICIPANT FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE.
THE LIMITATION OR EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES WILL NOT APPLY TO PARTICIPANT TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
IN COUNTRIES WHERE THE ABOVE TYPES OF EXCLUSIONS AND LIMITATIONS AREN’T ALLOWED, WE’RE RESPONSIBLE TO PARTICIPANT ONLY FOR LOSSES AND DAMAGES THAT ARE A REASONABLY FORESEEABLE RESULT OF OUR FAILURE TO USE REASONABLE SKILL AND CARE OR OUR BREACH OF OUR CONTRACT WITH PARTICIPANT.
NOTHING IN THESE TERMS AFFECTS CONSUMER RIGHTS THAT CANNOT BY LAW BE WAIVED OR LIMITED BY ANY CONTRACT OR AGREEMENT.
Nothing in these Terms shall exclude or limit the liability of Participant or Vendor and its affiliates, officers, employees, agents, licensors, resellers, suppliers and distributors for death or personal injury, fraud, fraudulent misrepresentation or any liability that cannot be excluded or limited by law.
The provisions of this “Limitation of Liability” section allocates the risks under these Terms between Participant and Vendor, and you and Vendor have relied on these limitations in determining whether to enter into these Terms and the pricing for the Services.
19. Force Majeure
Neither party shall be deemed to be in default of its obligations hereunder to the extent any delay in its performance is caused by or is the result of factors beyond its reasonable control, including, without limitation, fire, explosion, accident, acts of terrorism, riot, flood, drought, storm, earthquake, lightning, frost, civil commotion, sabotage, vandalism, smoke, hail, embargo, act of God or of a public enemy, other casualty, strike or lockout, (collectively, an event of “Force Majeure”).
20. Relationship of the Parties
Each party shall be considered an independent contractor. The relationship between the parties shall not be construed to be that of employer and employee, partnership, joint venture, or agency of any kind.
21. Counterparts and Imaging
This Agreement may be executed in counterparts, each of which shall be deemed original, but all of which taken together shall constitute one and the same instrument.
The titles or section headings of the various provisions of this Agreement are intended solely for convenience and ease of reference and shall not in any manner amplify, limit, modify, or otherwise be used in, the interpretation of any such provisions.
All covenants, conditions, warranties, uncompleted obligations, and indemnifications contained in this Agreement which may involve performance subsequent to any termination of this Agreement, or which cannot be ascertained or fully performed until after termination of this Agreement, shall survive.
24. No Waiver
The failure of either party at any time to require performance by the other party of any provision of this Agreement shall not affect the right of such party to require performance of that provision, and any waiver by any party of any breach of any provision of this Agreement shall not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under this Agreement.
To ask questions or comment about these Terms, please contact us at:
Map My Customers, Inc.
2500 Regency Parkway
Cary, NC 27518