Multiplayer Cloud Services Agreement
This Cloud Services Agreement ("Agreement") is between Multiplayer Software, Inc. ("Multiplayer") and the individual, company, organization, or other entity who indicates acceptance of this Agreement (the "Customer"), either by using the Service (as defined below), executing, placing or otherwise entering into an Order (defined below), which may be using an online functionality, such as clicking a box indicating acceptance, creating an account, or otherwise affirmatively indicating acceptance of this Agreement. If Customer is a company, organization, or other entity, the individual accepting this Agreement on Customer’s behalf represents and warrants that they have authority to bind Customer to this Agreement. This Agreement is effective as of the date Customer accepts the Agreement as described above (the “Effective Date”).
1. Definitions
1.1. Affiliate
"Affiliate" means an entity directly or indirectly owned or controlled by a party, where “ownership” means the beneficial ownership of 50% or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.
1.2. Aggregated Data
"Aggregated Data" means Customer Data that has been deidentified or aggregated with other data such that the resulting data no longer reasonably identifies Customer or a specific individual.
1.3. Confidential Information
"Confidential Information" has the meaning given to it in Section 16.1.
1.4. Customer Data
"Customer Data" means any data or information that: (a) Customer (including its Users) submits to the Services, including from Third-Party Platforms; and (b) is Processed by Multiplayer to provide the Services to Customer.
1.5. Customer Materials
"Customer Materials" means materials, systems, and other resources that Customer provides to Multiplayer in connection with the Services.
1.6. Discloser
"Discloser" has the meaning given to it in Section 16.1.
1.7. Documentation
"Documentation" means the then-current version of Multiplayer’s usage guidelines and standard technical documentation for the Services that Multiplayer makes generally available to its customers that it provides the applicable Services to, the current version of which are at https://www.multiplayer.app/docs/.
1.8. Excluded Claims
"Excluded Claims" has the meaning given to it in Section 14.3.
1.9. Fees
"Fees" has the meaning given to it in Section 10.2.
1.10. Input
"Input" means text or other input submitted by a User to the Service for purposes of the production of AI-generated outputs.
1.11. Laws
"Laws" means all applicable relevant local, state, federal, and international laws, regulations, and conventions, including those related to data privacy and data transfer, international communications, and export of data.
1.12. Limited Warranty
"Limited Warranty" has the meaning given to it in Section 11.1.
1.13. Limited Warranty Period
"Limited Warranty Period" has the meaning given to it in Section 11.1.
1.14. Log-in Credentials
"Log-in Credentials" has the meaning given to it in Section 3.3.
1.15. Order
"Order" means an order that describes the Services being purchased by Customer that is entered into by the parties (which may be electronically) and references this Agreement.
1.16. Platform
"Platform" has the meaning given to it in Section 2.
1.17. Policies
"Policies" means policies posted to the Site or otherwise made available by Multiplayer from time to time.
1.18. Process
"Process" means to collect, access, use, disclose, transfer, transmit, store, host, or otherwise process.
1.19. Prohibited Data
"Prohibited Data" means any: (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (b) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); (c) credit, debit, or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (d) other information subject to regulation or protection under specific Laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations); (e) social security numbers, driver’s license numbers, or other government ID numbers; or (f) any data similar to the above protected Laws.
1.20. Recipient
"Recipient" has the meaning given to it in Section 16.1.
1.21. Service or Services
"Service" or "Services" means the then-current version of Multiplayer’s proprietary service and related features that are identified in the relevant Order (but excluding Support and including without limitation the Platform). Each of the Services includes the Software and Documentation for the Service.
1.22. Site
"Site" means Multiplayer’s website at https://multiplayer.app/ and any related web pages operated by Multiplayer from time to time.
1.23. Software
"Software" means any software, scripts, or other code required by Multiplayer to operate a Service.
1.24. Subscription Term
"Subscription Term" means the period during which Customer’s subscription to access and use the Services is in effect, as identified in the applicable Order.
1.25. Support
"Support" means support for the Services as described in Section 4.
1.26. Taxes
"Taxes" has the meaning given in Section 10.2.
1.27. Term
"Term" has the meaning given to it in Section 12.1.
1.28. Third-Party Platform
"Third-Party Platform" means any third-party platform, add-on, service, or product not provided by Multiplayer that Customer elects to integrate or enable for use with any Service, which may include, without limitation, BitBucket, GitLab, and GitHub.
1.29. Trials and Betas
"Trials and Betas" has the meaning given to it in Section 18.
1.30. Updates
"Updates" means any updates, modifications, or bug fixes to the Services or Documentation that Multiplayer provides free of additional charge to its customers using a Service.
1.31. Upgrades
"Upgrades" means additions, enhancements, upgrades, new services, or modules that include new features and substantial increases in functionality to the Services that Multiplayer makes available to its customers for an additional fee.
1.32. Usage Data
"Usage Data" means information generated from the use of the Services, which data does not identify Users, any other natural human persons, or Customer, such as technical logs, data, and learnings about Customer’s use of the Services, but excluding any identifiable Customer Data.
1.33. User
"User" means any employee or contractor of Customer or its Affiliates that Customer allows to use the Services on Customer’s behalf.
2. Overview
Multiplayer provides a platform to design, manage, map, visualize, and develop distributed software (the “Platform”). The Platform is available through the Site, where you may create an account, select a subscription plan and service tier, and access the Services, each as outlined in this Agreement.
3. Services
3.1. Ordering Process
Services are purchased as stated in an Order in the manner established for each of the Services. Each Order will include the specific Services ordered by Customer, including, as applicable, the purchased Services, service tier, and the time period for which such Order applies.
3.2. Permitted Use
During the applicable Subscription Term, subject to Customer’s compliance with the terms of this Agreement, Customer may access and use the Services only for its internal business purposes in accordance with the Documentation, this Agreement, and any limitations set forth in an Order.
3.3. Users
Only Users, using the mechanisms designated by Multiplayer ("Log-in Credentials"), may access and use the Services. Each User must keep its Log-in Credentials confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with this Agreement and all actions taken through their Log-in Credentials (excluding misuse of the Log-in Credentials caused by Multiplayer’s breach of this Agreement). Customer will promptly notify Multiplayer if it becomes aware of any compromise of any Log-in Credentials. Multiplayer may Process Log-in Credentials in connection with Multiplayer’s provision of the Services or for Multiplayer’s internal business purposes.
3.4. Restrictions
Customer will not (and will not permit anyone else to) do any of the following: (a) provide access to, distribute, sell, or sublicense a Service to a third party (other than Users); (b) use a Service on behalf of, or to provide any product or service to, third parties; (c) use a Service to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to a Service, except to the extent expressly permitted by Law (and then only with prior notice to Multiplayer); (e) modify or create derivative works of a Service or copy any element of a Service; (f) remove or obscure any proprietary notices in a Service; (g) publish benchmarks or performance information about a Service; (h) interfere with the operation of a Service, circumvent any access restrictions, or conduct any security or vulnerability test of a Service; (i) transmit any viruses or other harmful materials to a Service; (j) take any action that risks harm to others or to the security, availability, or integrity of a Service; or (k) access or use a Service in a manner that violates any Law. Notwithstanding anything else in this Agreement, Multiplayer has no liability for Prohibited Data.
3.5. AI Assist
The Services may include certain AI-enabled or otherwise automated functionalities such as a chat service currently known as “AI Assist”. Such functionalities may permit Users to submit Inputs for the purpose of producing AI-generated outputs. You are solely responsible for verifying the accuracy and relevance of any such outputs. By using any AI-enabled or automated functionalities such as AI Assist, you acknowledge and agree that such functionalities may be powered by or in connection with Third-Party Platforms and are subject to the terms of the applicable Third-Party Platform. Use of the chat service currently known as “AI Assist” is powered by Meta Llama 3 and subject to the applicable agreement at https://llama.meta.com/llama3/license/. Multiplayer may provide the option to use such functionalities with a different service provider as set forth in an Order, including without limitation by connecting to a Third-Party Platform using your account and/or access keys to such Third-Party Platform. If you elect to do so, your use of such functionalities is subject to your agreement with that third-party service provider as further set forth in Section 9. By submitting Input to or via a Service, you grant Multiplayer a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to store, reproduce, process (including by sharing such Inputs with any applicable Third-Party Platform), and modify your Input, in whole or in part, for the purpose of developing the Service and providing the Service on your behalf. You must not submit Input that (i) contains personal data or sensitive health information, (ii) causes Multiplayer to violate any law or regulation, or (iii) violates any acceptable use policy made available by Multiplayer or any policies of an applicable Third-Party Platform, including the Llama Acceptable Use Policy, currently available at https://llama.meta.com/llama3/use-policy/.
4. Support
During a Subscription Term, Multiplayer will offer commercially reasonable levels of support in accordance with its then-current support policy via the contact information provided through the Service.
5. Upgrades
Unless stated otherwise in an Order, Multiplayer will make Updates to Services as Multiplayer makes them available to its customers of the applicable Services generally. Customer’s purchase of access to Services is not contingent on the delivery of any future functionality or features or dependent on any oral or written public or private comments made by Multiplayer regarding future functionality or features of the Services. From time to time, Multiplayer, in its sole discretion, may make available Upgrades under additional or different terms. Nothing in this Agreement obligates Multiplayer to make Upgrades available to Customer as part of the Services or otherwise unless specifically included in an Order.
6. Data
6.1. Use of Customer Data
Customer grants Multiplayer the non-exclusive, worldwide, sublicensable right to use, copy, store, disclose, transmit, transfer, publicly display, modify, and create derivative works from Customer Data only as necessary to: (a) provide any Services and Support; (b) derive or generate Usage Data; (c) create and compile Aggregated Data; and (d) as otherwise required by Laws or as agreed to in writing between the parties.
6.2. Usage Data; Aggregated Data
Multiplayer may Process Usage Data and Aggregated Data for internal business purposes, such as to: (a) track use of Services for billing purposes; (b) provide support for Services; (c) monitor the performance and stability of the Services; (d) prevent or address technical issues with the Services; (e) to improve Services, its other products and services, and to develop new products and services; and (f) for all other lawful business practices, such as analytics, benchmarking, and reports. Customer will not interfere with the collection of Usage Data.
7. Customer Obligations
Customer is responsible for its Customer Data, including its content and accuracy, and will comply with Laws when using the Services. Customer represents and warrants that it has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary for Multiplayer to Process Customer Data set forth in this Agreement without violating or infringing Laws, third-party rights, or terms or policies that apply to the Customer Data.
8. Suspension of Service
Multiplayer may immediately suspend Customer’s access to any or all of the Services if: (a) Customer breaches Section 3.4 (Restrictions) or Section 7 (Customer Obligations); (b) Customer’s account is 30 days or more overdue; (c) changes to Laws or new Laws require that Multiplayer suspend a Service or otherwise may impose additional liability on the part of Multiplayer; or (d) Customer’s actions risk harm to any of Multiplayer’s other customers or the security, availability, or integrity of a Service. Where practicable, Multiplayer will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing). If the issue that led to the suspension is resolved, Multiplayer will restore Customer’s access to the Service(s).
9. Third-Party Platforms
Multiplayer may provide integrations with, or access through Services to, Third-Party Platforms. Use of Third-Party Platforms is subject to Customer’s agreement with the relevant provider and not this Agreement. Use of the chat feature currently referred to as “AI Assist” is subject to the Meta Llama 3 license agreement as further indicated in Section 3.5. Multiplayer does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability with the Services or how the Third-Party Platforms or their providers use Customer Data. By enabling a Third-Party Platform to interact with the Services, Customer (i) authorizes Multiplayer to access, collect, and exchange Customer Data with such Third-Party Platform on Customer’s behalf, including without limitation data and information stored by Customer on or via such Third-Party Platform and (ii) represents and warrants that Customer has and has obtained from third parties to the extent necessary, all rights and consents needed to allow Multiplayer to access, use, and process such Third-Party Platforms, data, and information without violating any third-party rights or agreements. Multiplayer provides any such links to or integrations with Third-Party Platforms only as a convenience, and the inclusion of any such link or integration does not imply endorsement, or affiliation with, any Third-Party Platform by Multiplayer. Multiplayer reserves the right to remove such links or integrations at any time. Customer’s use of Third-Party Platforms is at Customer’s own risk and is subject to any terms, conditions, and policies applicable to such Third-Party Platforms.
10. Commercial Terms
10.1. Subscription Term
Unless otherwise set forth in an Order, each Subscription Term will initially be 12 months and will automatically renew for successive 12-month periods unless either party gives the other party notice of non-renewal at least 30 days before the current Subscription Term ends. To provide notice of non-renewal, Customer must cancel its subscription through the applicable account settings page. Multiplayer may provide notice of non-renewal through Customer’s account or otherwise through a communication sent to the contact information provided by Customer. If Customer accesses or uses a Service pursuant to a free trial period or any other Trial and Beta, such access or use is only permitted for the time period indicated in the Order or otherwise indicated in writing by Multiplayer (the “Trial Period”). If Customer does not cancel its subscription during the Trial Period, the subscription will automatically convert to a full subscription as outlined in this Agreement.
10.2. Fees and Taxes
Fees for the Services are described in each Order (“Fees”). Unless otherwise provided in an Order, all Fees will be charged monthly to the payment method you provide and will be paid in US dollars. Fees for renewal Subscription Terms are at Multiplayer’s then-current rates, regardless of any discounted pricing in a prior Order. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. All charges are non-refundable except as may be set out in Section 11.2 (Warranty Remedy) and Section 15.4 (Mitigation). Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to Orders, whether domestic or foreign, other than Multiplayer’s income tax (“Taxes”). Fees are exclusive of all Taxes.
10.3. Billing Authorization
By providing your payment method as permitted on the Site and obtaining a subscription to the Service, you authorize us or our payment processor to charge your designated payment method the applicable recurring fees and any applicable taxes.
11. Warranties and Disclaimers
11.1. Limited Warranty
Multiplayer warrants to Customer that each of the Services will perform materially as described in its Documentation and Multiplayer will not materially decrease the overall functionality of the Service (“Limited Warranty”) during a Subscription Term (“Limited Warranty Period”).
11.2. Warranty Remedy
If Multiplayer breaches the Limited Warranty during the applicable Warranty Period and Customer makes a reasonably detailed warranty claim in the manner required by Multiplayer within 30 days of discovering a breach of the Limited Warranty for the applicable Service(s), then Multiplayer will use reasonable efforts to correct the non-conformity. If Multiplayer cannot do so within 30 days of receipt of Customer’s warranty claim, either party may terminate the affected Order as it relates to the non-conforming Service. Multiplayer will then refund to Customer any pre-paid, unused fees for the terminated portion of the applicable Subscription Term. This Section sets forth Customer’s exclusive remedy and Multiplayer’s entire liability for breach of the Limited Warranty. This warranty does not apply to: (a) issues caused by Customer’s or Users’ misuse of or unauthorized modifications to the applicable Service; (b) issues in or caused by Third-Party Platforms or other third-party systems; (c) use of the applicable Service other than according to the Documentation; or (d) Trials and Betas or other free or evaluation use.
11.3. Disclaimers
Except as expressly provided in Section 11.1 (Limited Warranties), the Services, Support, and all other Multiplayer services, including any AI-generated outputs, are provided “AS IS” and on an “AS AVAILABLE” basis. Multiplayer, on its own behalf and on behalf of its suppliers and licensors, disclaims all other warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular purpose, title, or noninfringement. Multiplayer does not warrant that Customer’s use of the Services will be uninterrupted or error-free, that Multiplayer will review Customer Data for accuracy, or that it will maintain Customer Data without loss. Multiplayer is not liable for delays, failures, or problems inherent in use of the Internet and electronic communications or other systems outside Multiplayer’s control. Customer may have other statutory rights, but any statutorily required warranties will be limited to the shortest legally permitted period. No advice or information, whether oral or written, obtained by you from the Service or Multiplayer or any materials or content available through the Service will create any warranty regarding Multiplayer or the Service that is not expressly stated in this Agreement. The Service, and all materials and content provided by Multiplayer on or through the Service, are provided solely for informational purposes and do not constitute technical or any kind of professional advice. You follow any advice or information provided through the Service, and engage in any activities discussed on or through the Service, at your own risk. You acknowledge and agree that portions of the Service rely on machine learning which, by nature, produces outputs that are based on probabilistic reasoning and therefore may not always be accurate, complete, relevant, useful, or error free. You understand and agree that you use any portion of the Service and any outputs thereof at your own discretion and risk, and that we are not responsible for any damage to your property (including your computer system or mobile device used in connection with the service) or any loss of data, including Customer Data.
12. Term and Termination
12.1. Term
The term of this Agreement (the “Term”) starts on the Effective Date and continues until expiration or termination of all Subscription Terms.
12.2. Termination
Either party may terminate this Agreement (including any or all Orders) if the other party: (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.
12.3. Effect of Termination
Upon expiration or termination of an Order, Customer’s access to and Multiplayer’s obligations to provide the Services and Support will cease. Multiplayer will be under no obligation to store or retain the applicable Customer Data and may delete the applicable Customer Data at any time in its sole discretion. Customer Data and other Confidential Information, as defined in Section 17, may be retained in Recipient’s standard backups notwithstanding any obligation to delete the applicable Confidential Information but will remain subject to this Agreement’s confidentiality restrictions.
12.4. Survival
These Sections survive expiration or termination of this Agreement: Section 1 (Definitions), 3.4 (Restrictions), 3.5 (AI Assist), 6.2 (Usage Data; Aggregated Data), 7 (Customer Obligations), 10.2 (Fees and Taxes), 11.3 (Disclaimers), 12.3 (Effect of Termination), 12.4 (Survival), 13 (Ownership), 14 (Limitations of Liability), 15 (Indemnification), 16 (Confidentiality), 17 (Required Disclosures), 18 (Trials and Betas), and 20 (General Terms). Except where an exclusive remedy is provided in this Agreement, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
13. Ownership
Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except as expressly provided in this Agreement, as between the parties, Customer retains all intellectual property rights and other rights in Customer Data and Customer Materials provided to Multiplayer. Except for Customer’s use rights in this Agreement, Multiplayer and its licensors retain all intellectual property rights and other rights in the Services, any deliverables, outputs, and reports (excluding the Customer Data therein), Software, Documentation, Usage Data, and Multiplayer technology, templates, formats, and dashboards, including any modifications or improvements to these items made by or on behalf of Multiplayer. If Customer provides Multiplayer with feedback or suggestions regarding the Services or other Multiplayer offerings, Multiplayer may use the feedback or suggestions without restriction or obligation.
14. Limitations of Liability
14.1. Consequential Damages Waiver
Except for Excluded Claims (as defined below) neither party (nor its suppliers or licensors) will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business, or any indirect, special, incidental, reliance, or consequential damages of any kind, even if informed of their possibility in advance.
14.2. Liability Cap
Except for Excluded Claims, each party’s (and its suppliers’ and licensors’) entire liability arising out of or related to this Agreement will not exceed in aggregate the amounts paid or payable by Customer to Multiplayer pursuant to this Agreement during the 12 months prior to the date on which the applicable claim giving rise to the liability arose under this Agreement.
14.3. Excluded Claims
“Excluded Claims” means: (a) Customer’s breach of Sections 3.4 (Restrictions) or 6 (Customer Obligations); (b) either party’s breach of Section 16 (Confidentiality) (but excluding claims relating to Customer Data); or (c) amounts payable to third parties under the indemnifying party’s obligations in Section 15 (Indemnification).
14.4. Nature of Claims and Failure of Essential Purpose
The waivers and limitations in this Section 14.4 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
15. Indemnification
15.1. Indemnification by Multiplayer
Multiplayer will defend Customer from and against any third-party claim to the extent alleging that a Service, when used by Customer as permitted under the applicable Order infringes or misappropriates a third-party’s U.S. patent, copyright, trademark, or trade secret, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer (including reasonable attorneys’ fees) or agreed in a settlement by Multiplayer resulting from the claim.
15.2. Indemnification by Customer
Customer will defend Multiplayer from and against any third-party claim to the extent resulting from Customer Data, Customer Materials, or Customer’s breach or alleged breach of Section 7 (Customer Obligations), and will indemnify and hold harmless Multiplayer against any damages and costs awarded against Multiplayer (including reasonable attorneys’ fees) or agreed in a settlement by Customer resulting from the claim.
15.3. Procedures
The indemnifying party’s obligations in this Section 15 are subject to it receiving: (a) prompt written notice of the claim; (b) the exclusive right to control and direct the investigation, defense, and settlement of the claim; and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Services, when Multiplayer is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.
15.4. Mitigation
In response to an actual or potential infringement or misappropriation claim or otherwise relating to violation of intellectual property rights, if required by settlement or injunction or as Multiplayer determines necessary to avoid material liability, Multiplayer may at its option: (a) procure rights for Customer’s continued use of the applicable Service; (b) replace or modify the allegedly infringing portion of the applicable Service to avoid infringement or misappropriation without reducing the Service’s overall functionality; or (c) terminate the affected Order and refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term.
15.5. Exceptions
Multiplayer’s obligations in this Section 15 do not apply: (a) to infringement or misappropriation resulting from Customer’s modification of Services or use of Services in combination with items not provided by Multiplayer (including Third-Party Platforms); (b) to unauthorized use of Services; (c) if Customer settles or makes any admissions about a claim without Multiplayer’s prior consent; or (d) to Trials and Betas (as defined in Section 18) or other free or evaluation use.
15.6. Exclusive Remedy
This Section 15 sets out Customer’s exclusive remedy and Multiplayer’s entire liability regarding infringement or misappropriation of third-party intellectual property rights.
16. Confidentiality
16.1. Definition
“Confidential Information” means information disclosed to the receiving party (“Recipient”) under this Agreement that is designated by the disclosing party (“Discloser”) as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Multiplayer’s Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Services. Customer’s Confidential Information includes Customer Data.
16.2. Obligations
As Recipient, each party will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 6.1 (Use of Customer Data); and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser’s request, Recipient will delete all Confidential Information, except, in the case where Multiplayer is the Recipient, Multiplayer may retain the Customer’s Confidential Information to the extent required to continue to provide the Services. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for Multiplayer, the subcontractors referenced in Section 20.9), provided it remains responsible for their compliance with this Section 16 and they are bound to confidentiality obligations no less protective than this Section 16.
16.3. Exclusions
These confidentiality obligations do not apply to information that Recipient can document: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using Confidential Information.
16.4. Remedies
Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 16.
17. Required Disclosures
Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.
18. Trials and Betas
If Customer receives access to Services or features thereof on a free or trial basis or as an alpha, beta, or early access offering (“Trials and Betas”), use is permitted only for Customer’s internal evaluation during the period designated in writing by Multiplayer on the applicable Order (or if not designated, 30 days). Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that Multiplayer may never release, and their features and performance information are Multiplayer’s Confidential Information. Notwithstanding anything else in this Agreement, Multiplayer provides no warranty, indemnity, SLA, or support for Trials and Betas, and its liability for Trials and Betas will not exceed US$50.
19. Publicity
Neither party may publicly announce that the parties have entered into this Agreement, except with the other party’s prior consent or as required by Laws. However, Multiplayer may include Customer and its trademarks in Multiplayer’s customer lists and promotional materials but will cease further use at Customer’s written request.
20. General Terms
20.1. Assignment
Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its assets or voting securities to the other party involved in such transaction. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
20.2. Governing Law, Jurisdiction, and Venue
This Agreement is governed by the laws of the State of New York and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in New York County, New York, and both parties submit to the personal jurisdiction of those courts.
20.3. Attorneys’ Fees and Costs
The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
20.4. Notices
Except as set out in this Agreement, any notice or consent under this Agreement must be in writing to the addresses on the first page and will be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if by certified or registered U.S. mail (return receipt requested); or (c) one day after dispatch if by a commercial overnight delivery service. Notices may not be sent via email unless otherwise expressly permitted elsewhere in this Agreement. Either party may update its address with notice to the other party. Multiplayer may also send operational notices to Customer by email or through the Services.
20.5. Entire Agreement
This Agreement (which includes all Orders and the Policies) is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation.
20.6. Amendments
Any amendments, modifications, or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by Multiplayer. Nonetheless, with notice to Customer, Multiplayer may modify the Policies to reflect new features or changing practices, but the modifications will not materially decrease Multiplayer’s overall obligations during a Subscription Term. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by Multiplayer; any of these Customer documents are for administrative purposes only and have no legal effect.
20.7. Waivers and Severability
Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal, or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.
20.8. Force Majeure
Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster.
20.9. Subcontractors
Multiplayer may use subcontractors and permit them to exercise Multiplayer’s rights, but Multiplayer remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
20.10. Independent Contractors
The parties are independent contractors, not agents, partners, or joint venturers.
20.11. Export
Customer will comply with all relevant U.S. and foreign export and import Laws in using any Service. Customer: (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; (b) agrees not to access or use Services in violation of any U.S. export embargo, prohibition, or restriction; and (c) will not submit to the Services any information controlled under the U.S. International Traffic in Arms Regulations.
20.12. Government End-Users
Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense. All other use is prohibited.
20.13. Conflicts in Interpretation
If there are inconsistencies or conflicts between the terms of the body of this Agreement and the terms of any exhibits, attachments, addenda, Policies, and other documents attached to or incorporated by reference in this Agreement, the order of precedence is as follows: (a) the terms contained in the body of this Agreement; (b) the terms of the exhibits, attachments, addenda, and Policies to this Agreement; and (c) the Documentation.