Terms and Conditions

• SaaS Agreement
• SLA
• Terms & Conditions

SaaS Agreement

Updated: August 28, 2024

This SaaS agreement, including its schedules attached or referred hereto (collectively the "Agreement"), constitutes binding terms by and between Matia Inc. (the "Company") and the entity executing the corresponding Order Form (the "Customer") (each a "Party" and collectively, the “Parties”). By signing the applicable Order Form (as defined below), Customer acknowledges these terms and represents that it has fully read and understood, and agrees to be bound by this Agreement (the date of such occurrence being the "Effective Date"). Customer may use the Service (as defined below) subject to the terms below.

If Customer has purchased the license granted hereunder from a partner, reseller, or distributor authorized by Company ("Partner"), to the extent there is any conflict between this Agreement and the agreement entered between Customer and the respective Partner, including any purchase order ("Partner Order Form"), then, as between Customer and Company, this Agreement shall prevail. Any rights granted to Customer in such Partner Order Form which are not contained in this Agreement apply only in connection with such Partner. In that case, Customer must seek redress or realization or enforcement of such rights solely with such Partner and not Company.

1. Definitions

The following capitalized terms have the meanings set forth below:

1.1 “Affiliate” means, with respect to either Party, any person, organization, or entity controlling, controlled by, or under common control with, such Party. For purposes of this definition only, “control” of another person, organization, or entity shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the activities, management, or policies of such person, organization, or entity, whether through the ownership of voting securities, by contract or otherwise. Without limiting the foregoing, control shall be deemed to exist when a person, organization, or entity (i) owns or directly controls fifty percent (50%) or more of the outstanding voting stock or other ownership interest of the other organization or entity, or (ii) possesses, directly or indirectly, the power to elect or appoint fifty percent (50%) or more of the members of the governing body of the other organization or entity.

1.2 "Feature" means any module, tool, functionality, or feature of the Service.

1.3 "Order Form" means a written or electronic order form, to which this Agreement is attached or incorporated, and which is executed by the Parties. The "Order Form" shall include the relevant usage and volume parameters, as well as the commercial terms, agreed between the Parties.

1.4 "Subscription Scope" means any Service usage and/or limitations set forth in the Order Form.

1.5 "Initial Subscription Term" means the Service initial subscription period specified in the Order Form.

1.6 "Users" means an employee of Customer authorized to access and use the Service.

2. Subscription

2.1 Access Right. Subject to the terms and conditions of this Agreement, Company hereby grants Customer a limited, worldwide, non-exclusive, non-sublicensable, non-transferable, and revocable right to remotely access (i.e., on a SaaS basis) the Company’s software-as-a-service (the "Service") during the Subscription Term (as defined below), solely for Customer's internal purposes (collectively, the "Subscription"). Unless otherwise indicated, the term "Subscription" also includes any appliance and any manual or documentation provided or made available to Customer in connection with the operation of the Service ("Documentation"). Customer may use the Service subject to the use limitations specified in this Agreement and the respective Order Form or Partner Order Form (if purchased via Partner) and applicable laws and regulations.

Customer shall be solely responsible for providing all equipment, systems, assets, access, and ancillary goods and services needed to access and use the Service, for ensuring their compatibility with the Service.

2.2 Additional Purchases. Purchases of access to additional Features and/or purchases of additional volume under the Subscription Scope (collectively, "Additional Purchases"), shall be made by mutually signed written addendum to the Order Form or by executing a new order form, in each case according to the pricing agreed between the Parties (or the pricing pre-agreed in the Order Form, if any). If Additional Purchases take effect during a Subscription Term, the Subscription Fees and the term therefor will be prorated to be coterminous with said Subscription Term.

2.3 Account Setup. In order to access the Service, Customer is required to set up an administrative account with Company, by submitting the information requested in the applicable Service interface ("Account"). Customer warrants that all information submitted during the registration process is, and will thereafter remain, complete and accurate. Customer shall be responsible and liable for all activities that occur under or in the Account. Customer will require that all Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer will be fully responsible and liable for any breach of this Agreement by a User. Any unauthorized access or use of the Service must be immediately reported to the Company.

2.4 Hosting. The Service is hosted by a third-party hosting services provider selected by Company (currently AWS) ("Hosting Provider"), and accordingly, the availability of the Service shall be in accordance with the Hosting Provider's then-current uptime commitments.

3. Support Services and Professional Services

3.1 Support Services. Company shall provide support and maintenance services in accordance with Company's then current Service Level Agreement (attached hereto as Exhibit B). Company shall be responsible for such service providers' performance of the support and maintenance services. The term Subscription shall include the support and maintenance services provided [under the SLA].

3.2 Professional Services. In the event Customer wishes to receive any additional services from Company which are not included in the Order Form or in the SLA, such as installation, deployment, configuration, customization, integration, training, or other professional services (“Professional Services“), Customer shall request the same from Company in writing, and, subject to Company's agreement in its sole discretion, such Professional Services shall be set out in sequential Statements of Work to the Agreement, as shall be negotiated and executed by both Parties (each, a “SOW“). Professional Services shall be charged in accordance with the fees and payment terms specified within the applicable SOW. Each SOW is hereby deemed incorporated into the Agreement by reference. To the extent of any conflict between the main body of the Agreement and a respective SOW, the former shall prevail, unless and to the extent that the SOW expressly states otherwise.

4. Subscription Fees

4.1 Subscription Fees. If Customer has purchased the Subscription directly from Company, this Section 4.1 shall apply. Customer shall pay Company the Subscription fees specified in the Order Form (the "Subscription Fees").

4.2 Other Fees. Customer shall pay Company whatever other fees or charges are specified in the Order Form ("Other Fees", and together with the Subscription Fees, the "Fees").

4.3 General. Unless expressly stated otherwise in the Order Form: (a) all Fees are stated, and are to be paid, in U.S. Dollars; (b) all payments under this Agreement are non-refundable, and are without any right of set-off or cancellation; and (c) all Fees are payable, and shall be invoiced, in advance, and shall be paid within thirty (30) days of receipt of invoice.

4.4 Suspension. Company reserves the right to temporarily suspend provision of Service: (a) if Customer is fourteen (14) days or more overdue on a payment; (b) if Company deems such suspension necessary as a result of Customer’s breach under Section 5 (Subscription Restrictions); (c) if Company reasonably determines suspension is necessary to avoid material harm to Company or its other customers, including if the Service's cloud infrastructure is experiencing denial of service attacks or other attacks or disruptions outside of Company’s control, or (d) as required by law or at the request of governmental entities.

4.5 Taxes. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties, or governmental charges, except for taxes based upon Company's net income. In the event that Customer is required by any law applicable to it to withhold or deduct taxes for any payment under this Agreement, then the amounts due to Company shall be increased by the amount necessary so that Company receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction. If a purchase order (or purchase order number) is required by Customer in order for an invoice to be paid, then Customer shall promptly provide such purchase order (or number) to Company. Any terms or conditions (whether printed, hyperlinked, or otherwise) in a purchase order or related correspondence, which purport to modify or supplement this Agreement (or the corresponding Order Form), shall be void and of no effect.

If Customer purchased the Subscription via a Partner, the Subscription is subject to the full payment of the applicable fees as set forth in the Partner Order Form between Customer and the respective Partner. All payments shall be made directly to Partner, as agreed between Customer and Partner. If Customer is entitled to a refund under the terms and conditions of this Agreement, then, unless Company specifies otherwise, Company will refund any applicable fees to the Partner, and the Partner alone will be responsible for refunding the appropriate amounts to Customer.

5. Subscription Restrictions

As a condition to the Subscription, and except as expressly permitted otherwise under this Agreement, Customer shall not do (or permit or encourage to be done) any of the following subscription restrictions (in whole or in part): (a) copy, "frame" or "mirror" the Service; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Service to any third party (such as offering it as part of a time-sharing, outsourcing, or service bureau environment); (c) publicly perform, display, or communicate the Service; (d) modify, alter, adapt, arrange, or translate the Service; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of the Service; (f) remove, alter, or conceal any proprietary rights notices displayed on or in the Service; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Service; (h) make a derivative work of the Service, or use it to develop any service or product that is the same as (or substantially similar to) it; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Service; (j) employ any hardware, software, device, or technique, or (k) take any action that imposes or may impose (as determined in Company’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Service, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure.

6. Personal Data

To the extent that Customer needs a data processing agreement, Customer shall request Company to provide it with Company's Data Processing Agreement ("DPA") and shall return such DPA signed to Company as described therein.

7. Mutual Warranties

Each Party represents and warrants that it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law or regulations, including any law relating to data privacy.

8. Intellectual Property Rights

8.1 Service. As between the Parties, Company is, and shall be, the sole and exclusive owner of all intellectual property rights in and to: (a) the Service and all related software and intellectual property; and (b) any and all improvements, derivative works, and/or modifications of/to the foregoing, regardless of inventorship or authorship. Customer shall make, and hereby irrevocably makes, all assignments necessary or reasonably requested by Company to ensure and/or provide Company the ownership rights set forth in this paragraph. Company shall be entitled, from time to time, to modify and replace the Features (but not material functionalities, unless it improves the material functionality) and user interface of the Service. Nothing herein constitutes a waiver of Company’s and its Affiliates intellectual property rights under any law.

8.2 Feedback. If Company receives any feedback (which may consist of questions, comments, suggestions, or the like) regarding any of the Services (collectively, "Feedback"), all rights, including intellectual property rights in such Feedback shall belong exclusively to Company and such shall be considered Company's Confidential Information. Customer hereby irrevocably and unconditionally transfers and assigns to Company all intellectual property rights it has in such Feedback and waives any and all moral rights that Customer may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Company at its sole discretion provided that any external use of the Feedback by Company shall not reference Customer as the source without Customer prior approval that will not unreasonably be withheld. Without derogating from the above, Company in no way shall be obliged to make use of the Feedback.

8.3 Analytic Information. Any anonymous information, which is derived from the use of the Services (i.e., metadata, aggregated and/or analytics information and/or intelligence relating to the operation, support, and/or Customer’s use, of the Service) which is not personally identifiable information and which does not identify Customer ("Analytics Information") may be used for providing the Service, for development, and/or for statistical purposes. Such Analytics Information is Company's exclusive property.

8.4 Customer Data. While using the Services, certain data, such as personal data or other data, will be made available and/or accessible to Company or the Services (the "Customer Data"). Customer hereby grants Company and its Affiliates a worldwide, non-exclusive, non-assignable (except as provided herein), non-sublicensable (except to Company's subcontractors, if applicable), non-transferable right and license, to access and use the Customer Data, solely for Company's provision of the Services and related services hereunder. As the exclusive owner of the Customer Data, Customer represents, warrants and covenants that to the extent the Customer Data includes any personally identifiable information, Customer has received and/or obtained any and all required consents or permits and has acted in compliance with any and all applicable privacy laws, including, without limitation privacy laws, as to allow Company to receive, transfer and use the Customer Data solely in order to perform the Service. Company may however be required to disclose the Customer Data: (a) to satisfy any applicable law, regulation, legal process, subpoena, or governmental request; or (b) to collect, store, transfer, and/or process the Customer Data through Company's affiliates, subsidiaries, third party service providers and vendors as reasonable necessary to provide the Services. Company will maintain commercially reasonable administrative, technical, and physical safeguards designed to protect the security, confidentiality, and integrity of Customer Data.

8.5 Third-Party Components. The Service may use or include third-party open source software, files, libraries, or components that may be distributed to Customer and are subject to third-party open source license terms. A list of any third-party open source software and related open source licenses will be provided by Company upon request. If there is a conflict between any open source license and the terms of this Agreement, then the open source license terms shall prevail but solely in connection with the related third-party open source software. Company makes no warranty or indemnity hereunder with respect to any third-party open source software.

9. Confidentiality

Each Party may have access to certain non-public information and materials of the other Party, in any form or media, including without limitation trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive (the "Confidential Information"). Customer Data shall be deemed Customer’s Confidential Information. Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party's Confidential Information from disclosure to a third party. The receiving party’s obligations under this Section 10, with respect to any Confidential Information of the disclosing party, shall not apply to and/or shall terminate if such information: (a) was already lawfully known to the receiving party at the time of disclosure by the disclosing party; (b) was disclosed to the receiving party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the receiving party has become, generally available to the public; or (d) was independently developed by the receiving party without access to, use of, or reliance on, the disclosing party’s Confidential Information. Neither Party shall use or disclose the Confidential Information of the other Party except for performance of its obligations under this Agreement ("Permitted Use"). The receiving party shall only permit access to the disclosing party's Confidential Information to its respective employees, consultants, affiliates, agents, and subcontractors having a need to know such information in connection with the Permitted Use, who either (i) have signed a non-disclosure agreement with the receiving party containing terms at least as restrictive as those contained herein or (ii) are otherwise bound by a duty of confidentiality to the receiving party at least as restrictive as the terms set forth herein; in any event, the receiving party shall remain liable for any acts or omissions of such persons. The receiving party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that it promptly notifies the disclosing Party in writing of such required disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure and cooperates reasonably with the disclosing party in connection therewith. All right, title, and interest in and to Confidential Information is and shall remain the sole and exclusive property of the disclosing Party.

10. DISCLAIMER OF WARRANTIES. Company represents and warrants that, under normal authorized use, the Service shall substantially perform in conformance with its Documentation. As Customer's sole and exclusive remedy and Company's sole liability for breach of this warranty, Company shall use commercially reasonable efforts to repair the Service. If Company is not able to repair the Service within seven (7) business days, Customer shall be entitled to a pro-rated refund of fees for the period of service unavailability. The warranty set forth herein shall not apply if the failure of the Service results from or is otherwise attributable to: (i) repair, maintenance, or modification of the Service by persons other than Company or its authorized contractors; (ii) accident, negligence, abuse, or misuse of the Service; (iii) use of the Service other than in accordance with the Documentation; or (iv) the combination of the Service with equipment or software not authorized or provided by Company. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND THE RESULTS THEREOF ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. COMPANY DOES NOT WARRANT THAT: (i) THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS, OR (ii) THE SERVICE WILL OPERATE ERROR-FREE. EXCEPT AS SET FORTH IN SECTION 8 AND THIS SECTION ‎11, THE COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, SATISFACTORY QUALITY TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, FITNESS FOR A PARTICULAR PURPOSE. COMPANY WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO PUBLIC NETWORKS OR CUSTOMER'S HOSTING SERVICES.

11. LIMITATION OF LIABILITY.

WITHOUT DEROGATING FROM COMPANY'S INDEMNIFICATION OBLIGATION UNDER SECTION ‎‎13 AND EXCEPT FOR ANY DAMAGES RESULTING FROM ANY BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS HEREIN, WILLFUL MISCONDUCT, AND/OR CUSTOMER'S MISAPPROPRIATION OR OTHERWISE VIOLATION OF COMPANY'S INTELLECTUAL PROPERTY RIGHTS (INCLUDING VIOLATION OF THE SUBSCRIPTION RESTRICTIONS BY CUSTOMER): (I) NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, REPUTATION, PROFITS, DATA, OR DATA USE, OR THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES; (II) EITHER PARTY’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID OR PAYABLE TO COMPANY BY CUSTOMER DURING THE TERM OF THIS AGREEMENT. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. FOR CLARITY, THE LIMITATIONS IN THIS SECTION 12 (II) DO NOT APPLY TO PAYMENTS DUE TO COMPANY UNDER THIS AGREEMENT (INCLUDING ITS EXHIBITS).

12. Indemnification.

Company agrees to defend, at its expense, any third party action or suit brought against Customer alleging that the Services, when used as permitted under this Agreement, infringe intellectual property rights of a third party ("IP Infringement Claim"): and Company will pay any damages finally awarded by court against Customer that are attributable to any such IP Infringement Claim, provided that (i) Customer promptly notifies Company in writing of such claim; and (ii) Customer grants Company the sole authority to handle the defense or settlement of any such claim and provides Company with all reasonable information and assistance in connection therewith, at Company’s expense. Customer will not be bound by any settlement that Company enters into without Customer's prior written consent.

If the Service becomes, or in Company's opinion is likely to become, the subject of an IP Infringement Claim, then Company may, at its sole discretion: (a) procure for Customer the right to continue using the Service; (b) replace or modify the Service to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot be accomplished despite Company's reasonable efforts, then Company may terminate this the affected Order Form(s) upon written notice to Customer, and Customer shall be entitled to receive a pro-rated refund of any prepaid Subscription Fees under such Order Form(s) based on the remaining period of the corresponding Subscription Term(s).

Notwithstanding the foregoing, Company shall have no responsibility for IP Infringement Claims resulting from or based on: (i) Company’s compliance with Customer’s instructions or specification; or (ii) combination or use of the Services with equipment, devices, or software not supplied by Company. This Section 13 states Company's entire liability, and Customer's exclusive remedy, for any IP Infringement Claim.

13. Term and Termination

13.1 Term. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue in full force and effect for the duration of the Initial Subscription Term or the initial subscription terms specified in the Partner Order Form (as the case may be) (the "Initial Subscription Term"). In case Customer purchased the subscription directly from the Company, following such Initial Subscription Term, the Order Form shall automatically renew for successive Subscription Terms of equal length (each, a "Renewal Subscription Term", and together with the Initial Subscription Term, the "Subscription Term"), unless either Party notifies the other Party in writing of its intent not to renew the Order Form, not less than thirty (30) days prior to the expiration of the then-current Subscription Term.

13.2 Termination for Breach. Each Party may terminate this Agreement immediately upon written notice to the other Party if the other Party commits a material breach under this Agreement and, if curable, fails to cure that breach within thirty (30) days after receipt of written notice specifying the material breach (except that for payment defaults, such cure period will be seven (7) days).

13.3 Termination for Bankruptcy. Each Party may terminate this Agreement upon written notice to the other Party upon the occurrence of any of the following events in respect of such other Party: (a) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (b) the other Party makes a general assignment for the benefit of its creditors; (c) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (d) the other Party is liquidating, dissolving or ceasing normal business operations.

13.4 Effect of Termination; Survival. Upon termination of this Agreement for any reason: (a) the Subscription shall automatically terminate, (b) Customer shall cease all access and use of the Services thereunder, and (c) Customer shall (as directed) permanently erase and/or return all Confidential Information of Company in Customer's possession or control and Company shall permanently erase and/or return all Confidential Information of Customer in Company’s possession or control. Following termination, all outstanding Fees and other charges that accrued as of termination, which become immediately due and payable, and if necessary Company shall issue a final invoice therefor. The provisions of this Agreement that, by their nature and content, must survive the termination of this Agreement in order to achieve the fundamental purposes of this Agreement (including limitation of liability) shall so survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.

14. Miscellaneous

This Agreement, including the DPA (if applicable), any exhibits attached or referred hereto, represents the entire agreement between the Parties concerning the subject matter hereof, replaces all prior and contemporaneous oral or written understandings and statements, and may be amended only by a written agreement executed by both Parties. Any terms and conditions printed, or linked to, within any Customer’s purchase order which are in addition to and/or inconsistent with the terms and conditions of this Agreement, shall be of no effect. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach shall not be deemed a waiver by that Party as to subsequent enforcement or actions in the event of future breaches. Any waiver granted hereunder must be in writing. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and such provision shall be reformed only to the extent necessary to make it enforceable. Any use of the Service by an agency, department, or other entity of the United States government shall be governed solely by the terms of this Agreement. Customer hereby agrees that Company may use the Customer’s name and logo to identify Customer as a customer of Company or user of the Services, on Company’s web site, presentations, marketing materials or otherwise. Except as stated otherwise herein, this Agreement is for the sole benefit of the Parties hereto and nothing herein, express or implied, shall give or be construed to give, any rights hereunder to any other person. Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, this Agreement may be assigned by either Party in connection with a merger, consolidation, sale of all of the equity interests of such Party, or a sale of all or substantially all of the assets of the Party to which this Agreement relates. Without derogating from and subject to the abovementioned, this Agreement will bind and benefit each Party and its respective successors and assigns. This Agreement shall be governed by and construed under the laws of the State of New York, without reference to principles and laws relating to the conflict of laws. The competent courts of the city of New York shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement. Notwithstanding the foregoing, each Party may seek equitable relief in any court of competent jurisdiction in order to protect its proprietary rights. Each Party irrevocably waives its right to trial of any issue by jury. This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party. Company will not be liable for any delay or failure to provide the Services resulting from circumstances or causes beyond the reasonable control of Company including, but not limited to on account of strikes, shortages, riots, insurrection, fires, flood, storms, explosions, acts of God, war, government or quasi-governmental authorities actions, riot, acts of terrorism, earthquakes, explosions, power outages, pandemic or epidemic (or similar regional health crisis), or any other cause that is beyond the reasonable control of Company. Notices to either Party shall be deemed given (a) four (4) business days after being mailed by airmail, postage prepaid, (b) the same business day, if dispatched by facsimile or electronic mail before 13:00 hour (EST time) and sender receives acknowledgment of receipt, or (c) the next business day, if dispatched by facsimile or electronic mail after the hour 13:00 (EST time) and sender receives acknowledgment of receipt.

SERVICE LEVEL AGREEMENT

‍Company reserves the right to change the terms of this SLA by providing Customer with at least thirty (30) days prior written notice. 

1. Availability

Where API(s) are ordered under a corresponding Order, Matia will make the API(s) available to Customer so that it and its authorized Users can access the API(s) in accordance with the following specifications. 

Matia represents and warrants that the real-time components of the API(s) shall be fully available to Customer not less than 99% of the time each calendar year (“Minimum Service Availability”).  

“Service Availability” means, with respect to any particular calendar year, the percentage obtained by subtracting Unscheduled Downtime during such calendar year from the total time during such calendar year, and thereafter dividing the difference obtained by the total time during such year. Scheduled Maintenance shall not be considered toward any reduction in Service Availability measurement. 

Excluded from the measure of Service Availability are the following:

• Scheduled Maintenance. For the purpose of these Service Level Requirements, “Scheduled Maintenance” shall mean any non-emergency maintenance on the API(s) of which Matia normally performs on Sundays between 1:00 am to 1:00 pm EST time.
• Force Majeure Event;
• Downtime caused by any Internet service provider, third party hosted service provider, or telecommunication carrier; and
• Acts or omissions of Customer or any User of Customer (whether authorized or not), or third party related to Customer or its Users.

2. Failure Classifications

Customer shall report all Service failures (“Failures”) to Matia as provided below. For each Failure, Customer shall state the nature of the Failure and information required for its resolution, to the extent known. For the purpose of this Service Level Agreement, a Failure will be deemed to have been reported at the earlier of (a) when Matia’s Technical Support Desk receives a report of the Failure through email, or (b) when Matia opens a ticket in its system to track the Failure. Matia will classify Failures as follows:

• Severity I – a significant feature in the platform ceases to work (open issue in ticketing platform, view tickets, data sources connectors). A Severity 1 Error shall include any platform malfunction that poses imminent harm to Customer’s business
• Severity II – A minor function of the platform is impaired.
• Severity III – A minor function of the platform is impaired, however there is no adverse effect on Customer’s business.

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3. Technical Support

Matia uses commercially reasonable efforts to maintain a standard response time to technical support issues. This response time will depend on the complexity of the inquiries and support request volume. The Technical Support Department assigns the highest priority to customer inquiries related to Portal access issues. 

Support is available by email by contacting Matia’s Support Department at support@matia.io 

4. Maintenance

Scheduled Maintenance – To ensure optimal performance and security of the API(s), Matia will routinely perform maintenance on a regularly scheduled basis within its published maintenance windows. Unless otherwise necessary (and subject to at least five (5) days prior notice to Customer), Matia performs maintenance between the hours of 1:00am and 1:00pm on Sundays (EST time)

Emergency Maintenance – Under certain circumstances Matia may need to perform emergency maintenance. Matia may not be able to provide advance notice of emergency maintenance and may not be able to wait until a regularly scheduled maintenance window to perform the emergency maintenance, however Matia will use reasonable efforts to notify Customer in advance.

Terms and Conditions

LAST UPDATED: July 24, 2023

IMPORTANT, READ CAREFULLY: YOUR USE OF AND ACCESS TO THE SERVICE (AND ASSOCIATED SOFTWARE) (COLLECTIVELY, THE “SERVICE”) OF MATIA INC AND ITS AFFILIATES (“MATIA”) IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.

BY CLICKING THE “I AGREE” BUTTON/BOX, ACCESSING THE MATIA WEBSITE OR BY UTILIZING THE MATIA SERVICE YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS AND ALL EXHIBITS, ORDER FORMS, AND INCORPORATED POLICIES (THE “AGREEMENT”). THE MATIA SERVICE IS NOT AVAILABLE TO PERSONS OR ENTITIES WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS.  

Pursuant to this Terms of Use, Matia will provide the Service, and you may access and use the Service, in accordance with this Agreement. If you order the Service directly from Matia using an order form of Matia (each an “Order Form”), the Order Form may contain additional terms and conditions and information regarding the Service you are ordering.

1. THE SERVICE

1.1 The Service is a cloud-based Data movement and collaboration solution. It is designed to enable you to collect and manage data (together with all other information data that you make accessible to Matia, “Content“).

1.2 Matia provides you a right and permission to use the Service subject to a valid subscription, pursuant to the terms of the Order Form, as further detailed below.

1.3 Upon your subscription to the Service, Matia will grant you access to the Service or certain parts of it, which will allow Matia or you to add end-user accounts (“Permitted Users“) and to control or manage certain features of the Service. Permitted Users’ access to the Service is limited and personal. You are responsible for actions taken by Permitted Users or by anyone using your accounts and passwords.

1.4 Matia uses commercially reasonable efforts to maintain the highest Service availability. However, Matia cannot guarantee that the Service will operate in an uninterrupted or error-free manner. Matia performs Service maintenance and uses commercially reasonable effort to schedule system down-time to off-peak hours and to avoid service interruptions and delays.

2. EVALUATION PERIOD

If the Order Form include the purchase of evaluation services,  Matia will make the Service or any part of it available to you on an evaluation basis until the earlier of (i) the end of the applicable evaluation period pursuant to the Order Form, (ii) your purchase of a Service subscription, or (iii) any termination of the evaluation by Matia as applicable, for any reason, or for no reason at all, by sending you a termination notice with immediate effect.

3. DATA SECURITY  

3.1 Matia will maintain reasonable physical and technical safeguards to prevent unauthorized disclosure of or access to Content, in accordance with industry standards. Matia will notify you if it becomes aware of unauthorized access to Content. Matia will not access, view or process Content except (a) as provided for in this Agreement and in Matia’s privacy policy (“Privacy Policy”); (b) as authorized or instructed by you, (c) as required to perform its obligations under this Agreement; or (d) as required by applicable law. Matia has no other obligations with respect to Content.

4. YOUR UNDERTAKINGS

4.1 You assume full responsibility for your and your Permitted Users’ use of the Service in accordance with this Agreement and with applicable local, state, federal, national and international laws, regulations and treaties, and warrant that you have obtained all rights in the Content to authorize Matia to input, process, distribute and display the Content as contemplated by the Agreement.

4.2 You will not, and ensure that your Permitted Users will not, use the Service or Content for any use or purpose that: (i) is obscene, libelous, blasphemous, defamatory, inciting hatred, terrorism or any similar offense; (ii) infringes or misappropriates the intellectual property rights or violates the privacy rights of any third party (including without limitation, copyright, trademark, patent, trade secret, or other intellectual property right, moral right, or right of publicity); (iii) is in violation or may encourage any manner of acting that would violate any applicable local, state, national and foreign laws, treatises and regulations; or (iv) may drive or encourage any third party to do any of the above.

4.3 You will not, and will ensure that your Permitted Users will not: (i) use the Service for non-business uses or abuse the Service; (ii) resell, transfer, grant others permission to use the Service, pledge, lease, rent, or share your rights under this Agreement (including without limitation to any of your affiliates); (iii) modify, remove or amend Matia’s name or logo, update, reproduce, duplicate, copy all or any part of the Service; (iv) make any of the Service available to anyone other than your employees and consultants for use for your benefit as intended pursuant to this Agreement, or use any Service or Content for the benefit of anyone other than you; (v) use the Service in any way that restricts or inhibits the use of the Service; (vi) access or attempt to access any of Matia’s systems, programs or data that are not made available for public use, or attempt to bypass any registration processes on the Service or any of the Service’s security and traffic management devices; or (vii) attempt to decompile, disassemble, re-engineer or reverse engineer the Service or otherwise create or attempt to create or permit, allow, or assist others to extract source code of the Service, its structural framework or allow or facilitate a third party, to violate or infringe any rights of Matia’s or others or Matia policies or the operational or security mechanisms of the Service.

4.4 When using the Service in conjunction with other third party services, you will comply with the terms of service of such third party services. Matia shall not be liable for any termination, breach of terms or suspension of service resulting from your use of the Service.

4.5 You may not access or use the Service if you are a direct competitor of Matia, or for monitoring the Service’s availability, performance or functionality, or for any other benchmarking or competitive purposes.

5. SUBSCRIPTION FEES

5.1 In consideration for the right to use the Service under the terms herein, you will pay subscription fees in the amount and payment terms under the applicable Order Form (the “Subscription Fees”). Except to the extent otherwise expressly stated in this Agreement or in an order form, all obligations to pay Subscription Fees are non-cancelable and all payments are non-refundable.

5.2 Unless otherwise stated in the Order Form, your Subscription Fees are exclusive of taxes, levies, duties or similar governmental assessments of any kind (excluding taxes based on Matia’s income, property and employees). You will be responsible for paying any and all such taxes.

5.3 Matia, as applicable, reserves the right to modify the Subscription Fees for the Service under one or more Order Forms, effective upon commencement of the next renewal subscription term of the relevant Order Form(s), by notification provided to you by Matia, as applicable, of such change in writing at least 30 days before the end of the then-current Subscription Term.

6. PROPRIETARY RIGHTS; YOUR FEEDBACK

6.1 All parts of the Service are protected by copyrights, trademarks, service marks, patents or other proprietary rights, as a collective work or compilation, pursuant to laws and international conventions. Except for your Content, all rights to the Service and derivatives thereof are retained by Matia. In addition, Matia retains all rights to aggregated and anonymous data derived from your use of the Service, with the understanding that such data will not be identifiable as belonging to or emanating from you nor will such data contain information that directly or indirectly identifies you or any other person (natural or otherwise).

6.2 Matia makes no claim of ownership as to your Content, the trademarks of any third party linked or displayed on the Service, or with respect to any publisher or publication mentioned on the Service.

6.3 In the course of using the Service, you or your Permitted Users may provide Matia with feedback and suggestions regarding the Service. You hereby assign to Matia ownership in all such feedback and suggestions and all rights therein, without any royalty or accounting obligations to you.

7. LINKS TO OTHER WEBSITES AND APPLICATIONS

The Service may contain links and references to websites and applications of others. Matia may, from time to time, at our sole discretion, add or remove links. Matia has no control over these third-party websites and applications, Matia does not endorse, sponsor or confirm their content and Matia is not responsible or liable for any communication or transaction that you make with them.

8. WARRANTIES; DISCLAIMER

8.1 Each of you and Matia represent, warrant and covenant to the other that: (a) it has the full corporate right, power and authority to enter into and perform this Agreement, and such execution and performance does not and will not violate any other agreement to which it is a party, and (b) this Agreement constitutes its legal, valid and binding obligation.

8.2 The Service, when used in accordance with this Agreement, will perform in all material respects as specified in Section 1 above. Your sole and exclusive remedy under such warranty shall be for Matia to use commercially reasonable efforts to correct or to replace the affected Service with a component or service of similar functionality. The above warranty is conditioned upon you notifying Matia in writing within 30 days of discovery of any alleged defect in the Service together with a documented example of such defect. This warranty shall not apply to any portion of the Service that (a) have been subject to abuse or misuse, (b) is used in combination with any other products, process, equipment or software not furnished by Matia, (c) is related to a virus, worms and the like that has not been introduced by Matia, or (d) was used without authorization.

8.3 EXCEPT AS EXPRESSLY PROVIDED ABOVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE ABOVE, WE MAKE NO WARRANTY WHATSOEVER WITH RESPECT TO (I) THE SERVICE MEETING YOUR REQUIREMENTS, OR BEING UNINTERRUPTED, CONTINUOUS, TIMELY, OR ERROR OR VIRUS FREE; (II) WHETHER YOUR USE OF THE SERVICE OR THE CONTENT WILL GENERATE ANY RESULTS OR CONSEQUENCES; OR (III) WHETHER YOUR USE OF THE SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION.

8.4 NOTWITHSTANDING, DURING AN EVALUATION PERIOD, MATIA PROVIDES THE SERVICE “AS IS” AND “AS AVAILABLE”, WITHOUT ANY WARRANTIES AND REPRESENTATIONS.

9. PRIVACY AND OTHER POLICIES

Use of the Service is also subject to Matia’s Privacy Policy, a link to which is located at the footer on Matia’s website. The Privacy Policy, and all additional policies posted on noticed Matia’s website are incorporated into this Agreement by this reference. Additionally, you understand and agree that Matia may contact you via e-mail or otherwise with information relevant to your use of the Service, regardless of whether you have opted out of receiving marketing communications or notices.

10. CONFIDENTIALITY

10.1 “Confidential Information” means all information provided by a party to other party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, and excluding any information that was or has become publicly available without the receiving party’s actions or inactions. Matia’s confidential information includes, without limitation, the Service’s features, functionality and performance and your view of the Service. Your Confidential Information includes, without limitation, the Content.

10.2 Each party will hold the other party’s Confidential Information in strict confidence, use it only subject to the terms of this Agreement, allow its use only by the receiving party’s employees and consultants who have signed in advance a confidentiality agreement containing terms similar to this Agreement and on a need-to-know basis and pursuant to the terms of this Agreement, not make the other party’s Confidential Information available to any third party unless to the extent required by applicable law, implement adequate security measures to ensure against unauthorized access to, use or copying of the other party’s Confidential Information, and notify the other party in writing of any misuse of misappropriation of the other party’s Confidential Information of which the receiving party may become aware; in each case without derogating from the terms of the Matia Privacy Policy.

11. TERM AND TERMINATION

11.1 The initial subscription term of the Agreement will be as set forth and agreed by the parties in the Order Form (with any renewal subscription terms, the “Subscription Term”).

11.2 Matia may terminate this Agreement if you (i) materially breached this Agreement and has not cured such breach within 30 days after receiving notice (if curable), without prejudice and in addition to any right or remedy that Matia may have under this Agreement or the applicable law, or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

11.4 Upon termination or expiration of this Agreement; (a) you will cease use of the Service and all rights granted to you under this Agreement will terminate; (b) Sections 4.1, 5, 6, 8, 10, 11 through 14, 17, 19 and 20 survive termination of the Agreement. Thereafter, Matia will be under no obligation to maintain your Content, or make them available to you and Matia may delete any of your Content.

11.5 In the event of a termination due to uncured breach by Matia pursuant to Section 11.2, Matia will refund the remaining Subscription Fees until the end of the Subscription Term.

12. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY LAW, (i) UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES; IN EACH CASE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE; AND (ii) EXCLUDING LIABILITY FOR A BREACH OF SECTION 10 (CONFIDENTIALITY), YOUR PAYMENT OBLIGATIONS AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 14 (INDEMNIFICATION), EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE WILL NOT EXCEED THE FEES ACTUALLY RECEIVED BY MATIA FROM YOU UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE APPLICABLE CLAIM. THE ABOVE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND ARE FUNDAMENTAL ELEMENTS OF THE BARGAIN BETWEEN THE PARTIES. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you.

13. LIMITATION OF CLAIMS

Any claim or cause of action arising out of or related to use of the Service or to the Agreement must be filed within one year after such claim or cause of action arose, or be forever barred.

14. INDEMNIFICATION

14.1 Matia will indemnify, defend and hold harmless you, your officers, directors, employees, agents and affiliates from and against all losses, liabilities, claims, obligations, costs and expenses (including reasonable attorneys’ fees) that you incur in responding to a third-party claim or demand (“Claim”) alleging that the Service (excluding any Content) infringes or misappropriates any third party’s trademark, United States patent, copyright or trade secret. If a court of competent jurisdiction or Matia reasonably determines that any such claim prevails or is likely to prevail, Matia may, at Matia’s sole discretion and expense: (a) procure the right for you to continue to use the Service; (b) replace or modify the applicable Service so that it no longer infringes or misappropriates, as applicable, such patent or copyright; or (c) terminate this Agreement and refund you any prepaid Subscription Fees for the period subsequent to such termination, on a pro-rated basis.

14.2 You will indemnify, defend and hold harmless Matia, its officers, directors, employees, agents and affiliates, from and against all losses, liabilities, claims, obligations, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claims with respect to your use of the Service, including without limitation your Content and any claims against Matia by your employees, users, consultants, customers, service providers or the like in connection with their use of the Service, and excluding Matia’s indemnification obligations pursuant to the paragraph immediately above.

14.3 As a condition to such indemnification each of you and Matia will provide the other with written notice of such claim. Neither Matia nor you will enter into any settlement or compromise of any such claim without the indemnifying party`s prior written consent. The indemnifying party may assume the exclusive defense and control of any matter subject to indemnification. In all events, each of Matia and you will cooperate with the other in the defense of any claim.

15. FEDERAL GOVERNMENT END USE PROVISIONS

Matia provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. If a government agency has a need for rights not conveyed under these terms, it must negotiate with Matia to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

16. COPYRIGHT PROTECTION – DIGITAL MILLENNIUM COPYRIGHT ACT

16.1 Matia respects the rights of copyright owners and expect Matia users to the same. If you are a copyright work owner or an agent thereof, and you believe any content submitted to and hosted on the Service infringes your copyrights, you may submit a notification pursuant to the U.S. Digital Millennium Copyright Act (“DMCA”) by providing the Matia Designated Copyright Agent with the following information in writing (“Notice”):

16.1.1 sufficient details to enable identification of the copyrighted work that has been allegedly infringed, if multiple copyrighted works are claimed to be infringed, a representative list of such works;

16.1.2 a description of where the content that you claim is infringing is located on the Service; your contact information at which you may be contacted (for example, your address, telephone number, and email address);

16.1.3 a statement that you have a good faith belief that the use of the content identified in the Notice is not authorized by the copyright owner, its agent, or the law;

16.1.4 a statement, under penalty of perjury, that the information in the Notice is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is alleged to be infringed; and

16.2 Following receipt of your Notice, Matia will take whatever action as Matia deems appropriate, including removal of the challenged content from the Service. Matia may ask you to provide further or supplemental information, prior to removing any content, as Matia deems necessary to comply with the provisions of the DMCA. It is Matia’s policy to respond only to Notices of alleged infringement that comply with the provisions of this section.

16.3 Matia’s Designated Copyright Agent for notices of claims of copyright infringement may be reached as follows:

Copyright Agent, Matia Inc, subject line: Copyright Agent, email: privacy@matia.io

17. GOVERNING LAW AND EXCLUSIVE COURTS

This Agreement will be governed by laws of the State of New York, USA without regard to its choice of law or conflicts of law principles. You and Matia consent to the exclusive jurisdiction and venue in the courts in Manhattan, New York, USA, except that temporary relief to enjoin infringement of intellectual property rights may be sought in any court where such infringement has occurred. EACH PARTY WAIVES ANY OBJECTION (ON THE GROUNDS OF LACK OF JURISDICTION, FORUM NON CONVENIENS OR OTHERWISE) TO THE EXERCISE OF SUCH JURISDICTION OVER IT BY ANY SUCH COURTS.

18. FORCE MAJEURE

Neither party will be deemed to be in breach of this Agreement for any failure caused by reasons beyond a party’s reasonable control (including without limitation acts of God, war or civil disturbance), and it will notify the other party as soon as practicable in writing of such failure.

19. INJUNCTIVE RELIEF

You acknowledge that any use of the Service contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Service, may cause irreparable injury to Matia, its affiliates, suppliers and any other party authorized by Matia to resell, distribute, or promote the Service (“Resellers”), and under such circumstances Matia, its affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.

20. GENERAL

20.1 This Agreement, the Order Form, the Privacy Policy and the DPA comprise the entire agreement between you and Matia, state Matia’s and Matia’s suppliers’ entire liability and your exclusive remedy with respect to the Service, and supersede all prior agreements pertaining to subject matters of the Agreement, the Order Form, the Privacy Policy and the DPA, and you specifically confirm that you have not entered into this Agreement relaying on any oral or written public comments made by Matia regarding future functionality or features of the Service. The terms of any purchase order or similar document will have no effect and are hereby rejected. This Agreement has been prepared in the English language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes.

20.2 You and Matia are independent contractors with respect to each other, and nothing in this Agreement will be construed as creating a partnership, agency, fiduciary or employment relationship or a joint venture between you and Matia.

20.3 If any provision of this Agreement is held to be contrary to law, such provision will be construed, as nearly as possible, to reflect the original provision and the other provisions remain in full force and effect.

20.4 The section titles in this Agreement are solely for convenience and have no legal or contractual significance. No provision of the Agreement will be construed against Matia but rather will be construed in a neutral manner as terms entered into by a fully-informed party on a voluntary basis after opportunity to confer with advisors and legal counsel about the meaning and effects of the terms of this Agreement.

20.5 All modifications to or waivers of any term of this Agreement must be in a writing signed by you and Matia and expressly reference this Agreement. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term, and any failure to assert any right under the Agreement will not constitute a waiver.

20.6 Matia suppliers are beneficiaries of the limitations, obligations and restrictions contained in this Agreement that are protective of Matia or the Service.

20.7 This Agreement, and any rights granted hereunder, may not be transferred or assigned by a party, except to a successor of all or substantially all of its business or assets (by merger or otherwise).

Copyright © 2024 Matia Inc. All rights reserved.

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